R v KL

1. [1]

   The trial of Koloalea Maka Latu, whom I will refer to as "KL", is fixed to commence on 28 April 2025.

2. [2]

   Objection has been taken by the accused to the tender of various pieces of evidence which the Crown proposes to rely upon. That objection has been dealt with on the basis of written submissions filed by the Crown and on behalf of the accused and oral submissions.

3. [3]

   It is important for the parties to have a prompt ruling on the admissibility of the various parts of evidence in order to enable the proper preparation for trial.

4. [4]

   KL is charged with the murder of Uati Faletolu, to whom I will refer to as "the deceased", on 11 April 2022 at the Sydney Royal Easter Show. It is the Crown case that KL inflicted a fatal stab wound on the deceased when there was a brief confrontation between a group of youths, juveniles, belonging to a gang with the initials "RFA", of which the accused was a part, and members of a gang known as "67", of which the deceased was a part. There is no issue that KL was carrying a knife into the Easter show and that he used the knife to stab the deceased and to kill him.

5. [5]

   There are three principal issues to be determined at the trial.

6. [6]

   The first is whether, at the time KL wielded the knife and caused the death of the deceased, he had an intention to cause the deceased grievous bodily harm. That is an element of the offence which the Crown will be obliged to prove and it is not conceded by the accused.

7. [7]

   The second issue, which is acknowledged to be the primary issue, is whether KL had a substantial mental health impairment at the time of the act causing the death of the deceased, in that his capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired due to his having a mental health condition, which can conveniently be described as post-traumatic stress disorder or PTSD.

8. [8]

   On that issue there will likely be evidence before the jury from a specialist psychologist, Dr Katie Seidler; a forensic psychiatrist, Dr Andrew Ellis, both to be called by the accused; and expert evidence from a psychiatrist, Dr Kerri Eagle, to be called by the Crown. As I understand the effect of the evidence of the experts, they accept that, at the time of the stabbing, the accused was suffering from a psychiatric condition, being post-traumatic stress disorder. They differ as to whether, within the terms of the statutory provision, the extent of that post-traumatic stress disorder was sufficiently serious as to warrant the reduction of the offence from murder to manslaughter.

9. [9]

   The accused also raises, as a subsidiary issue, that he submits may arise from the evidence in the proceedings, whether, at the time he stabbed the deceased, he was acting in defence of himself or others. If that issue is raised on the evidence, then it will be a matter for the Crown to disprove that "defence". By that I mean the Crown will need to persuade the jury beyond reasonable doubt that the accused was not acting in self-defence at the time he stabbed the deceased.

10. [10]

    The parties provided to the Court material consisting of 615 pages which contained evidence, the subject of objection, and upon which pre-trial rulings could be given.

11. [11]

    In giving the rulings which follow, it is necessary to keep in mind the context, broadly, of the events leading up to the stabbing and what occurred afterwards. There will be evidence before the Court from a number of sources that two rival youth gangs existed. There will be evidence of gang activity, engaged in by members of the RFA gang, which necessarily include acts of violence. There will be evidence as well that at the time of the stabbing, KL was 14 years and 7 months old and that his companions were all, or substantially all, juveniles, and that the interactions with other gangs, particularly a gang known as "67", seemed to relate to geographical boundaries. The communications, which are the subject of evidence, including telephone calls that have been recorded; Instagram, or other social media posts; notes made on mobile telephones, or telephone; and notes made in handwriting, are the sources of these conclusions. I will keep all of these matters in mind.

12. [12]

    It is also necessary to note that, in respect of any of the disputed evidence upon which I have been asked to rule, the Crown does not tender it, or propose to rely upon it, as constituting tendency evidence. No notice of tendency evidence has been provided in accordance with the Evidence Act 1995 and, in submissions to the Court, the Crown has made it plain that the evidence is to be relied upon for various purposes, none of which involve tendency evidence. In those circumstances, I will restrict my consideration of the disputed evidence, in terms of relevance to facts in issue, so as not to have regard to any relevant tendency. I note that it may be necessary, in due course, to give an appropriate direction to the jury about that.

13. [13]

    I propose to deal with the disputed evidence in the sequence in which it has been provided to the Court in the folder, which is Exhibit A.

14. [14]

    I note that two items in that folder, being items numbered 10 and 20, are each constituted by a USB stick containing various videos, and I will deal with those two videos as separate exhibits, rather than as part of Exhibit A.

Objections to Material

1. [15]

   The first item in Exhibit A is a transcript of a telephone call which took place on 20 May 2022. It is convenient to note the form in which this is presented to the Court for the ruling, which is that, where there is no objection, the transcript remains in its original form; where the Crown, prior to the debate taking place yesterday and today, does not propose to press parts of it, those parts have been redacted. Where there is an objection, then that evidence has been highlighted in yellow.

2. [16]

   I propose to deal with the areas that are the subject of objection, which have not been either withdrawn or, alternatively, not pressed.

3. [17]

   Objection is taken to paragraphs on page 32 and 33. In my view, the material objected to is admissible. I regard it as relevant and, having regard to other evidence which is to be admitted, capable of being of significant probative value. I do not regard there as being any prejudice with respect to that material.

4. [18]

   Pages 34 and 35 contain material which is objected to, where KL, in conversation with the counter-party, comments about the events surrounding the way in which the deceased died after the stabbing. The evidence is that immediately after the stabbing KL fled the scene. There can be no doubt about that and, accordingly, any version given by KL in this telephone conversation must, at the least, be hearsay.

5. [19]

   The material objected to at pages 34 and 35 will not be admitted. I regard that material as either irrelevant, or else of very low probative value, for the reasons I have discussed and, having regard to the content of it and the apparent callous attitude, significantly unfairly prejudiced.

6. [20]

   The next material objected to is two lines at page 48 where KL is asked what his job is, and he replies that it is "stabbing people". It is quite clear that, throughout this telephone call, KL has engaged in joking conduct with the counter-party. It is clear that the lines to which I have just referred cannot be taken seriously and are not capable, in my view, of having any probative value. I reject those two lines.

7. [21]

   On page 50, in the course of the conversation, the parties discuss what each other are doing and the counter-party is asked if he has an iPad. KL says these words; "fuck, I had an iPad", there is an indistinct passage, followed by the words, "freaking angry. Now it's broken. I have to buy a new one". Further on, KL says, "I broke my Playstation" and then says, "I seem to have anger issues". Objection is taken to the phrase "I seem to have anger issues". It is said that this is poor humour, a joke, not capable of being accepted and it would be unfair to the accused because it is said in a different context. I disagree. In my view, the question of the state of mind and the character of the accused and whether he does or does not have anger issues is a relevant fact and it is capable of being deployed by the Crown to negative an issue of self-defence. In my view, the material at page 50 is admissible.

8. [22]

   The second phone call is to be found at tab 2 of Exhibit A and it is a phone call of 24 May 2022. Objection is taken to material at pages 68 to 70. It is part of a conversation between KL and an unnamed female. Although pages 68 and 69 were objected to, initially the Crown did not perceive that to be so and made no initial submissions. However, I have taken the Crown to be pressing that material, understanding that it was not objected to. In my view, the material at pages 68 to 70 should not be admitted. It is not relevant to any fact in issue. It refers to an untimed and unidentified event, with no surrounding circumstances and, at the least, does not seem to relate to any form of gang activity or gang culture. In those circumstances it is, in my view, irrelevant.

9. [23]

   Objection is taken to material which is to be found at pages 91 and 92. There are three parts to the material at pages 91 and 92.

10. [24]

    The first part objected to commences with KL saying he walks around school like a king and finishing with the words "you're part of RFA" from the counter-party. That part of the evidence is not pressed and is rejected.

11. [25]

    The second part of the evidence is contained on page 92 from "cause I'm bad ass" being said by KL to the end of that page. In my view, the unfair prejudice is very high, and I am not prepared to admit it given its low probative value.

12. [26]

    Page 93 includes material describing, what can be summarised as, activities of the RFA gang, or at least a part of the RFA gang. In my view, that material, which is objected to, is admissible. It goes directly to conduct and membership of the gang and also directly relates to other admissible material, which is to be found at page 301 of Exhibit A.

13. [27]

    On page 94 there is material referring to the fact that at the time of his death the deceased was the father of an unborn child. The Crown does not press that material and it is rejected.

14. [28]

    The next objection is to material at pages 97 and 98. That material is now not pressed by the Crown and it is rejected.

15. [29]

    Finally, there is an objection to material at page 100 of Exhibit A, which is part of this phone call, which is also not now pressed by the Crown and it is rejected.

16. [30]

    The next material, the subject of objection, is at tab 3, a phone call between KL and an unknown male, which took place on 1 June 2022.

17. [31]

    The material objected to is at page 106. It is constituted by two lines where KL says, "Tell him smokin' Uati" which seems to be repeated to a third party by the counter-party to the telephone conversation. That material is objected to. In my view, it is admissible. It demonstrates an attitude to what occurred and may be relevant to the negativing of self-defence.

18. [32]

    The next telephone call is noted at tab 4 of Exhibit A. It is a phone call between KL and a female, whose first name is Jessica. It occurred on 3 June 2022 at about 1.19am.

19. [33]

    Objection is taken to material at page 115 and across to 116. In my view, that material is not admissible and is rejected. It does not explicitly refer to any event in issue. It is not tendered, as I have earlier said, as tendency evidence. It is irrelevant to any fact in issue. It does not demonstrate a state of mind. It demonstrates a young man speaking with a close friend, in terms which are full of bravado and boastfulness about events, which have not happened, but which, if they do, would constitute crimes. In my view, there is no probative value and, if there is any, the content of the material is highly prejudicial, and unfairly so, and ought not be admitted.

20. [34]

    There is material objected to at page 120. The Crown does not now press that material and accordingly it is rejected.

21. [35]

    Similarly, there is material at page 140 which the Crown does not now press and is rejected.

22. [36]

    There is material which is pressed by the Crown at page 154, but which is objected to by the accused. It is true that the material refers to the brother of the deceased, and there is some material in other evidentiary statements which suggest that there may have been an intention by the accused to attack the deceased's brother Mase. However, the content of the statements at page 154 is a discussion about motorcars. Jessica, the counter-party to the telephone call, is discussing what sort of car she might buy, and KL is then discussing what sort of car he might wish to buy.

23. [37]

    It is to be remembered that, so far as KL is concerned, and it can be inferred Jessica, neither are old enough to have a driver's licence, let alone be in a position to acquire any car, at the time of the telephone conversation.

24. [38]

    The discussion moves on to a suggestion, having regard to the number of seats that KL thinks he may require in a vehicle, from Jessica that he may want a van. KL then says he might buy a normal sedan car or small car and get a van as well. It then appears that there is a comment that such a van, if purchased, which would have a sliding door, could be used to go and kidnap Mase and then kill him. This material, in my view, is highly and unfairly prejudicial. I would not admit it. The context for this is a discussion about motor vehicles at some unidentified time in the future. It does not refer to any fact in issue. It does not, in my view, having regard to the words which are spoken, constitute evidence capable of disproving self-defence. Nor does it constitute evidence which is capable of indicating an intention, at the time of the stabbing, to attack the deceased's brother. However, the introduction of the reference to the deceased's brother would mean that the jury would need to be so carefully directed as to how to use this evidence as to demonstrate that it would be unfair to allow it to be admitted. I am not prepared to admit the evidence at page 154.

25. [39]

    Tab 5 of the material refers to a telephone call which occurred on 4 June 2022 between KL and Jessica. Objection is taken to material at page 169 to 171 where there is a discussion about ownership of knives, giving knives different names. In my view, having regard to further evidence about the accused identifying the fact that the knife he used had been christened by him with the name "Barbie", this material at pages 169 to 171 is relevant to a fact in issue and displays an attitude to, and familiarity with, the use of knives and a manner of referring to the use of knives in a way which may be capable of assisting in the disproof of self-defence.

26. [40]

    The material at tab 6A, is a phone call of 7 June 2022 between the accused and an unidentified female. Whilst there were objections taken, those objections have been withdrawn and there is now no objection to that material. It will be admitted.

27. [41]

    In the telephone call at tab 6B of 7 June 2022, objections have been taken to material at pages 223-224, 226-227 and 230-232. The Crown does not now press that material, which is objected to, and accordingly it is rejected.

28. [42]

    At tab 6C, a phone call between the accused and an unnamed female on 10 June 2022, at page 234, the material is objected to. The Crown does not press that material. It is rejected.

29. [43]

    The next part of the evidence to which objection was taken was parts of the phone call contained at tab 7A in Exhibit A, being a telephone call recorded on 16 June 2022. Pages 290 and 291 were objected to, the Crown did not press those, they will be rejected. Pages 292 through to 294 were objected to and not pressed by the Crown, they will be rejected. The top three lines of page 295 were objected to, not pressed by the Crown and will be rejected.

30. [44]

    The balance of pages 295 and 296 are objected to. The phone call which is taking place, and the transcript of which is behind 7A, is between KL and an unnamed female. It is clear from those portions which have been provided that the phone call took place between two people who were familiar with each other. The discussion at pages 295 and 296 is about arrangements which may be entered into between them with respect to meeting up, apparently during school time, and then the female counterparty returning to school. The discussion which is sought to be tendered then occurs about how that return to school is to take place.

31. [45]

    On the one hand, the accused appears to be insisting he should accompany the counterparty back to school and she is resisting saying that she's capable of returning to school by herself without any risk of harm, but suggests that the accused may be at risk if he was to return with her. He responds to that suggestion by words which suggest that he is more than capable of looking after himself. The words he uses are characterised by bravado, boastfulness, and a general sense of the accused putting himself forward as a strong male protective of his female friend. The facts contained in these conversations at pages 295 and 296 are so far removed from any issue in the proceedings as to, in my judgment, be entirely irrelevant. Pages 295 and 296 will not be admitted.

32. [46]

    Pages 297 to 299 are not pressed by the Crown and will be rejected.

33. [47]

    Pages 301 to 302 contain material which, in my view, is relevant and of significant probative value. It refers to, and demonstrates the behaviour of, the accused and the basis upon which he was not only a member of the RFA gang but admitted to a small group within it. I cannot detect any unfair prejudice in that material. I accept that it is prejudicial, but that is because it is probative of the Crown case. The material at pages 301 and 302 will be admitted.

34. [48]

    Material objected to at page 303 is not pressed by the Crown and will be rejected.

35. [49]

    The next telephone call is contained behind tab 7B. It is a telephone call that occurs on 25 June 2022 between KL, a female and an unknown male. The material objected to is at pages 310 to 311. In my view, it is relevant to the attitude of the accused to participation in gang activity even after the earlier event. Accordingly, it will be admitted.

36. [50]

    Tab 7C contains the transcript of a telephone conversation between KL and an unnamed female occurring on 29 June 2022. Objection is taken to pages 314 and 315 which is a discussion about the use of a kind of knife which can be thrown and once thrown - at a time when the accused uses a name which has been given to the knife - hopefully the knife would strike to the person who has been the target of the knife throwing. There is no doubt that the accused used a knife to stab the deceased and cause his death. There is no suggestion of any knife being thrown or deployed in any way similar to the descriptions given in pages 314 and 315; that is to say, the references to knives on those pages are not to knives of the kind that were used. There is no direct relevance of the conversation at those pages to any fact in issue.

37. [51]

    To the extent that the material objected to records that the accused has any intention to use knives by throwing them, there are no circumstances described in which that is to occur. The material, in my view, has low probative value but it is unfairly prejudicial to the accused because it introduces a type of activity from which a jury may be inclined, even if directed to put it to one side, to draw a conclusion about his general bad character.

38. [52]

    In those circumstances, where unfair prejudice significantly outweighs the probative value, I decline to admit that material.

39. [53]

    Objection is taken to material at pages 323 and 324. I decline to admit the material on page 324 starting with the words "the coolest gang" down to the words "I was with Barbie" on page 324. I admit the balance of the material at pages 323 and 324 which is pressed by the Crown.

40. [54]

    In my view, the material on page 324 which I decline to admit is wholly irrelevant; the other material has a degree of relevance and probative value.

41. [55]

    The material at pages 333 to 335 is not pressed by the Crown and I reject it.

42. [56]

    Objection is taken to the material at pages 340 and 341; in particular, objection is taken to the words "but, we kept on going and then we started catching people, started bashing people, like together". Those words appear as part of an overall conversation between KL and the unnamed female where KL asks the unnamed female whether there was anything else she wanted to know. The unknown female asks him why he joined the gang RFA. The balance of the material, including the words which are objected to provide KL's account of how it was that he came to be a member of RFA. The objected to words are an integral feature of that account. Whilst I accept that a statement that the accused engaged in the conduct of catching people and bashing people is prejudicial, in my view, those words are necessary for the unfolding of his explanation as to why he joined RFA. I accept they are prejudicial but not, in my view, in any unfair way. Accordingly, having regard to the high probative value, the lack of any real unfair prejudice and the fact that what is proposed to be tendered all consists of a single conversation between the accused and the unnamed female counterparty, it is appropriate that that material be admitted.

43. [57]

    The final telephone conversation was held on 11 July 2022, and the transcript is contained behind tab 8 of Exhibit A. The phone call is between KL and an unknown female. I pause to note that this phone call occurs three months after the stabbing the subject of the charge on the Indictment.

44. [58]

    At page 358, it appears that the parties are engaged in some form of general conversation. The words spoken, which the Crown seeks to include as admissible evidence, and to which the defence takes objection, are the following quote.

45. [59]

    By this time, KL has not been arrested. The arrest occurs after this telephone conversation. The material at page 358 does not seem to me to be anything other than a statement by the accused of his present assessment of his own status. He is, of course, at this stage still 14 years old and 2 months shy of his 15th birthday, or thereabouts. He is not a mature individual intellectually. In my assessment, the accused is giving himself a title which he does not deserve by any reasonable objective assessment. If he is admitting that he is simply part of a gang, and that's what the Crown seeks to draw from this material, then that is not a fact in issue; he accepts he was a member of the gang, and indeed his principal defence of substantial impairment depends upon his participation in and on the activities of the gang. The label he gives himself does not advance that position, nor does it tell one anything about whether he intended to stab the deceased, or whether he was acting in self-defence at that time three months earlier.

46. [60]

    Having regard to the date at which this telephone call takes place, the lack of any relevance to a fact in issue, the unfair prejudice which the use of that term may create in the minds of the jury because, to the ordinary person in the street, the use of the term "gangster", whether it be part-time or full time, conjures many different assessments of a person's behaviour. That unfair prejudice, in my assessment significantly outweighs any probative value, and accordingly I reject that material.

47. [61]

    Objection was taken to material at page 427 across to the top of 428. That objection has been withdrawn, that material is admissible. The Crown does not press the balance of the material on page 428 and I reject it.

48. [62]

    At page 429 to the first two lines of 430, objection is taken to that material but, in my view, it is admissible and explains that the accused has been staying elsewhere than the house where he ordinarily resides, and assists in explaining why it is that the police took some time to find him. The balance of the material on pages 430 through to 432 is not pressed by the Crown and it is rejected.

49. [63]

    Finally, in this telephone call there is material between pages 435 and 443 which is objected to. The objection concentrates on the words on page 436:

50. [64]

    In my view, having regard to the words spoken later in the conversation in which the accused gives a description of what happened, the words objected to reflect the accused's own version of what happened and are admissible and are of significant probative value, and they are capable of being taken by the jury to refer to the events which occurred on the evening in question. Accordingly, all of the material subject of objection between pages 435 and 443 is, in my view, admissible and will be admitted.

51. [65]

    Item 10 in Exhibit A is a video, separately marked as Exhibit B, of the accused at a very short time after the events in question. I note that the accused has withdrawn his objection and, accordingly, that material is admissible.

52. [66]

    Item 20 of Exhibit A, separately marked as Exhibit C, is a USB containing video of the accused's arrest. The Crown does not press that video, and it will be rejected.

53. [67]

    It is appropriate now to consider the material between tabs 11 and 13. Tab 11 contains an Instagram message which is said to have been posted on 28 April 2022, and is also reflected by an instant message sent on 26 July 2022. It contains some lyrics of what the parties describe as a drill rap song. A similar issue confronted Hamill J in the matter of R v Diallo & Ors (No 4) [2024] NSWSC 882. His Honour gave a series of rulings including about the admissibility of a drill rap song, or tune, in the context of a murder and wounding of a gang member. The circumstances, broadly, are analogous to the circumstances with which I am confronted.

54. [68]

    His Honour considered the words of the drill rap song, he considered the timing of the message and when it was modified, he considered the words of it and concluded that it had the capacity to affect an assessment of the probability of a fact in issue, and may go to the state of mind of the author at or around the time of the relevant incident.

55. [69]

    At [61] his Honour said this:

56. [70]

    At [62] his Honour said this:

57. [71]

    At [63] his Honour said this:

58. [72]

    With respect to his Honour, I entirely agree with his remarks at [61] and [62]. It is necessary to pay close attention to the words of the song in order to make an assessment of what rational impact the evidence could have; that is to say what, objectively speaking, could be its probative weight.

59. [73]

    One also has to consider what his Honour has said, with respect entirely correctly, in the context of the nature of the art in question (which is well-known for its use of violent language and bragging in the context of competition). On the other hand, where it is apparent that the words are referring to the particular event in question and can be anchored relevantly by what occurred, then it seems to me that it becomes a matter for the jury as to what weight, if any, is to be applied to it.

60. [74]

    I turn then against that background to consider the words contained in the message at tab 11. These words make it plain that when they were first published about two weeks or so after the stabbing in this case. The accused was expressing a view that he should celebrate, "pour my drink and light that joint", that he was entitled to celebrate "because the gang had just scored another point", and that the result of the events of stabbing the deceased meant that his gang, the RFA, had won "this one-sided war". The balance of the words demonstrate that he wishes to affirm the dominance of the RFA gang because he wants the mother of the deceased and at least one more person to hear the song, and he repeats what has earlier been admitted; that he was “smokin' Uati”. In my view, the message at page 455 is relevant and probative and ought be admitted.

61. [75]

    At tab 12 page 456 of Exhibit A there are two separate messages which require to be considered separately.

62. [76]

    The first of these is a relatively short song which seems to have been first created on 9 July 2022 and then inserted into the Notes app on the accused's mobile phone. It refers to pulling up in a Mercedes Benz; there is no doubt that a Mercedes Benz was one of the two cars used to transport the accused and his fellow gang members to the Easter Show; it then uses the term "merced" him, which seems to be a reference to what happened to the deceased; it then expresses the accused’s own view about what he thinks of the deceased, and expresses the view that he should have worked elsewhere; that is to say not at the Easter Show, implying that had he not been at the Easter Show he would not be dead; it then refers to his current attitude towards the deceased.

63. [77]

    In my view, the words of this rap song describe facts in issue and describe the attitude of the accused to what has occurred and to what he has done. In my view, at the very least they are relevant to whether he is entitled to maintain a self-defence approach to this case and also relevant to what his intention was at the time he stabbed the deceased. The Crown will be permitted to lead that material.

64. [78]

    The second song on page 456, which is repeated on page 457, comes into being at about 6 July 2022, and is inserted into the accused's App - Notes - on 26 July 2022 or thereabouts.

65. [79]

    The first two-thirds of the words used appear to directly relate to the stabbing of the deceased by the accused. The words are these:

66. [80]

    This material refers to, as I have said, and is capable of being held by the jury as referring to, the stabbing of the deceased at the Easter Show. It is capable of conveying that the stabbing formed part of the gang activities, that it was an act which led to domination of the 67 gang, who are now in hiding, that there was a motive for the stabbing, namely, that the deceased was "talking tough on the net", and further, that the accused had a particular intention at the time, which was to stab Mase, but instead stabbed the deceased.

67. [81]

    Although this is recorded about three months or so after the event in question, and given that the accused is clearly the author of it or at least is capable of being found by the jury to be the author of it, in my view this material is highly probative and compelling. The words that I have described ought be admitted. The balance of the words commencing, "I seen his mummy cry" down to the words "his heart in half" are unnecessary to the unfolding of the song as it earlier occurs. They are capable of being unfairly prejudicial because they express a callous attitude toward the mother of the deceased and, in those circumstances, I reject the admission of those words.

68. [82]

    The third song, which is at page 457, at tab 12 of Exhibit A, was created on 4 July 2022, and again appeared in the Notes app on the phone of the accused on 26 July 2022. It is as follows:

69. [83]

    Those words are words of the accused describing what he did and observed and thought about what occurred at the Easter Show on 11 April 2022. They demonstrate that those events were part of an engagement between two gangs where either one or the other would be killed, or may be killed, that he aimed at the deceased and swung his knife, reflecting that the deceased would not be making it home, and that what occurred was not a game, but the intentional killing of the deceased.

70. [84]

    There are some words at the end of that song which I have not included in my description of the appropriate words. In my view, they tell us nothing about what occurred on 11 April 2022. They are highly prejudicial and ought not be admitted.

71. [85]

    The material at tab 13 is a handwritten series of notes in a book that was seized from the accused after his arrest and he had been in detention for some period of time. They clearly reflect notes which he has made whilst he has been in detention.

72. [86]

    As I understand it, the Crown seeks to tender the material between pages 459 and 461. In my view, the material at page 459 is relevant to the existence of a gang culture, a contest between two gangs, the intention of the accused at the time of the stabbing of the deceased and to disproving any question of self‑defence. It will be a matter for the jury to determine what weight they in fact have, but in my view they are capable of having probative value. I would admit the material at page 459.

73. [87]

    The material at page 460 is not pressed by the Crown, and I reject it.

74. [88]

    The material at 461, whilst it has some reference to the RFA gang, does not, in my view, have any direct relevance to a fact in issue in these proceedings. In fact, it is talking about the use of guns, and contains some unidentified ruminating about violence. As I say, it is of no direct relevance. The contents are highly prejudicial, and to introduce a question of deliberate shooting of people in the head is to create significant unfair prejudice when that did not occur in this case. I reject the material at page 461.

75. [89]

    The material behind tabs 14 to 17 inclusive consist of the expert reports. I have not been taken through those expert reports, and no specific objection has been proffered for my ruling. Accordingly, I do not make any ruling about their admissibility at all. However, I wish to add these comments, because of the way in which certain submissions, particularly those in writing, had been put before the Court.

76. [90]

    For an expert opinion to be admissible, in addition to complying with the minimum requirements of the Evidence Act 1995, there has to be a clear identification by an expert of the facts and matters upon which they have relied, or which they have taken into account, upon the assumption that they are correct, to express their opinion. The facts and matters, or assumptions of fact, which have been made, which the experts take into account, are not proved in a case such as this by the experts saying that those facts exist. The expert opinion needs to be based upon facts which have been placed before the jury and proved to the satisfaction of the jury, unless those facts are admitted or not in contest. It is not the expert opinion which makes facts admissible. The facts have to be admissible, and, as I have said, appropriately proved before the expert can be asked to express an opinion.

77. [91]

    Against that background, it will be a matter for the parties to ensure that by the time they call the relevant experts they have analysed what facts have been relevantly proved, or facts which are not in issue and upon which the experts are to be asked to express an opinion.

78. [92]

    The final document which has been the subject of the debate before me is that found behind tab 19 of Exhibit A, commencing at page 600 and travelling through to page 611. It is an affidavit of the accused. Although it is undated, it was clearly made at a time when the accused had entered a plea of guilty to the offence of murder. Some background to that is required, and the evidence of Mr Benjamin Willcox, then the solicitor for the offender, assists with that background.

79. [93]

    On 15 July 2022 the accused was arrested and charged with the murder of the deceased, lawyers were instructed and a number of conferences occurred.

80. [94]

    On 1 July 2023, whilst the matter was still before the Children's Court of New South Wales, an offer was made on KL's instructions to plead guilty to manslaughter, based on an unlawful and dangerous act. That offer was rejected by the Crown; a further offer to plead guilty to manslaughter, on the basis of excessive self-defence was also rejected by the Crown. About ten days later, on 26 August 2023, the legal representatives of KL received instructions from him to plead guilty to murder.

81. [95]

    Accordingly, when the matter was next before the Children's Court, on 15 September 2023, a plea of guilty to murder was entered. At that time neither the lawyers for KL, nor KL himself, were aware of any mental health condition which could be relied upon for the purposes of a substantial impairment defence pursuant to s 23A of the Crimes Act 1900 (NSW). The accused appeared in this Court on 6 October 2023, when he maintained his plea upon arraignment. The matter was fixed for sentence on 4 December 2023. As part of the preparation for sentence, i.e., between October 2023 and December 2023, the accused’s affidavit was prepared.

82. [96]

    It is not clear to me whether the whole of the affidavit of KL is to be tendered. It does not matter. If the Crown wishes to tender any part of it other than the paragraph to which I will come, then that can be dealt with initially between the parties and then raised with me if any ruling is required.

83. [97]

    What was raised specifically with me, with respect to the content of that affidavit, was the content of paragraph 43. This is the part of the affidavit where the accused explained, from his perspective, what had happened on the evening in question. He said at paragraph 42:

84. [98]

    At paragraph 43 he said:

85. [99]

    The Crown seeks to tender the contents of paragraph 43 as constituting an admission by the accused that, at the time he was stabbing the deceased, he had the intention to cause the deceased serious bodily harm or, in the words of the statute, grievous bodily harm. The Crown submits that this is a clear admission by the accused to holding the intention necessary for it to discharge its obligations to prove each of the essential elements of the offence of murder. Accordingly, the Crown puts that the content of paragraph 43 is clearly relevant, and it is of significant probative value.

86. [100]

    The Crown draws attention to the fact that is the words are contained in an affidavit which was made on oath. It was sworn to by the applicant and, therefore, can be taken to be the truth. The Crown draws attention to the fact that the affidavit was drafted by the lawyers for the accused in consultation with him, that it was not a document that either the accused or his lawyers were obliged to file by any order of the court or other requirement of criminal procedure. It was, in that way, an entirely voluntary offering of the mindset of the accused, and it was sworn in circumstances where the accused was seeking to ameliorate or avoid any adverse findings on the sentencing process, other than those that must be made. In those circumstances, the Crown says, there is no unfairness to the accused in the use of this document.

87. [101]

    I need to record at this point that, in the course of preparation for the proceedings on sentence, it became apparent to the accused and to his lawyers, after a consultation with an expert psychologist, that he may have available to him a defence of substantial impairment. Accordingly, he indicated, prior to the sentencing proceedings commencing, that he wished to make an application to withdraw his plea.

88. [102]

    After further preparation, with the accused having been examined by an expert appointed by the Crown, an application was formally made and was granted, and the accused was permitted to withdraw his plea of guilty, and did so and, at least as I presently anticipate, when the matter stands for trial in two weeks’ time, the accused will be pleading not guilty to the charge of murder and a jury will be empanelled to determine his guilt.

89. [103]

    The accused objects to the admission of this paragraph on a number of bases. Those bases include that it would be unfair in the circumstances to use this material at the accused's trial because an explanation would have to be proffered to the jury that would involve disclosure of the fact that the accused had pleaded guilty to the offence. The accused submits that it is inevitable that such material would have to be revealed, and that even if the Court were to give appropriate directions to the jury about it, there would remain a question of significant and unfair prejudice to the accused, because of the jury having been informed that on legal advice he had entered a plea of guilty.

90. [104]

    The second matter which the accused submits is that the context in which this affidavit was prepared, was to put relevant material before the sentencing judge. He submits that it is unfair to now use that against the accused on his trial.

91. [105]

    Thirdly, it is put that, properly read, this is in fact not an admission of an actual state of mind, but in fact is only capable of being read as being a later acceptance by way of reconstruction of the accused's state of mind at the time of the stabbing.

92. [106]

    The accused submits that it is not capable of being concluded by a jury that this is in fact an admission. The accused points to the provisions of s 90 of the Evidence Act 1995 (NSW) and says that this Court has a discretion whether to refuse to admit the evidence called by the prosecution if, "having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence".

93. [107]

    Section 90 concentrates attention on the fact that the evidence is evidence of an admission which the Crown seeks to rely upon and adduce to prove a particular fact, and secondly, whether in the circumstances in which the admission was made it would be unfair to a defendant to use the evidence.

94. [108]

    I reject the tender of paragraph 43. I am of the view that, having regard to the circumstances in which the affidavit was sworn, including but not limited to the fact that the accused had only relatively recently turned 16, and was still a juvenile, and to the exact words that were used, it does not constitute and is not capable of constituting an admission by him as to his actual intention at the time of the stabbing. Rather, it is only capable of being interpreted as an attempt by him to explain the basis of his plea of guilty so as to enable that plea to be accepted by the presiding Judge. The presiding Judge, of course, had to be satisfied, particularly when the accused is a juvenile, that the material before the Court is sufficient to justify the entry of the plea.

95. [109]

    If, contrary to my conclusion, the words are capable of constituting admission, then having regard to the circumstances in which the affidavit was made, including, as I have said, the age of the accused, the fact that he had entered a plea of guilty, his reliance on legal advice, the affirming of a concept not readily able to be understood by a juvenile, and which was clearly based upon legal advice, it would be unfair to him to now permit the Crown to use the evidence. In those circumstances, I reject the contents of paragraph 43.

96. [110]

    I do not overlook the terms of s 137 of the Evidence Act. To the extent that it applies, and it may apply because it addresses unfair prejudice at a different point in time, s 137 obliges the Court to refuse to admit evidence adduced by a prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

97. [111]

    Section 90 refers to unfairness arising by reason of the circumstances in which the admission was made. Section 137 refers to unfairness arising at the time of trial.

98. [112]

    In my view, on the assumption (contrary to my initial conclusion) that this is an admission made by the accused as to his intention at the time of the stabbing, and whilst I accept that would have significant probative value, I also accept that it would be unfairly prejudicial to the accused. That is because the accused, to address the alleged significant probative value, would be obliged to call evidence to explain the circumstances in which this affidavit was sworn. I cannot conceive how any such explanation could avoid disclosing the fact that the accused had pleaded guilty to the offence, albeit at an earlier time. In those circumstances, there is a real danger of unfair prejudice to the accused which could not be remediated by any direction to be given by a trial Judge.

99. [113]

    Accordingly, I would also conclude by reference to s 137 that I must reject the evidence in paragraph 43 of the affidavit.

Conclusion

1. [114]

   This concludes a series of rulings on the material that had been proffered to the Court for ruling in terms of admissibility. Orders of the Court will be made which follow the conclusions which I have expressed. I will have those conclusions put into a table form and distributed to the parties to avoid any risk of misapprehension. The parties are at liberty to draw my attention to any ruling which I may have omitted.

Orders

1. [115]

   I make the following rulings: