R v Saliba

1. [1]

   Dominic Saliba (“the accused/applicant”) has pleaded not guilty to one count of murder. His trial is listed to commence on 10 March 2025. By way of Notice of Motion filed on 9 December 2024, the accused notified objections to several pieces of evidence. The pre-trial arguments commenced before me on 18 December 2024. The proceedings were adjourned to 6 February 2025 for further argument. On that date, the proceedings were again adjourned for further legal argument on 17 February 2025.

2. [2]

   At the conclusion of the hearing on 17 February 2025 I announced my rulings on each objection, with a view to providing a written judgment on 20 February 2025. What follows are the reasons for the rulings announced on 17 February 2025.

3. [3]

   The matter is listed for an application that the trial be heard by judge alone on 27 February 2025. Considering the fast-approaching hearing date and the trial date of 10 March 2025, it was necessary to provide the parties with rulings and a judgment expeditiously. I have therefore endeavoured to provide this judgment, without delay, following the hearing of final submissions on the pre-trial issues.

The Crown Case

1. [4]

   The Crown Case is set out in an Amended Crown Case Statement. The accused was 20 years old in December 2022. The deceased is his first cousin. He was 18 years old in December 2022. The accused and the deceased grew up together as part of an extended family group. The accused resided at an address in Bomaderry. His parents resided there on a part-time basis. Also residing at the premises were Matthew McAnally, Jaemon Elfverson and Layla McKinley.

2. [5]

   On the evening of 9 December 2022, the accused, the deceased, Mr Elfverson, and Mr McAnally were in the garage of the accused’s house. Ms McKinley was in the accused’s bedroom. Also at the premises were Jordan Mitchell, Lachlan Hannagan and Saxon McCracken.

3. [6]

   The accused and the deceased were observed to be “slapboxing” with each other in the garage. They were each seen at different times, holding containers that held cannabis or money. The accused picked up a container that the deceased had dropped and was heard to say, “this is mine” and walked from the garage into the kitchen through the internal door. The deceased followed the accused.

4. [7]

   The accused is alleged to have entered his bedroom to retrieve the knife which inflicted the fatal injury (referred to as the “murder weapon”) and then returned to the kitchen where the deceased was. One or two minutes later, the deceased was heard by witnesses making a loud “Arghh” sound. The Crown Case is that the accused stabbed the deceased twice, once to the lower abdomen, and once to the deceased’s chest.

5. [8]

   Moments later, the deceased entered the garage from the kitchen holding his chest and said, “What the fuck? Why do you always do that?”. The deceased sounded like he was in pain, and he was screaming. The deceased was bleeding from his chest. He walked outside the roller doors of the garage onto the driveway where he collapsed on the ground.

6. [9]

   The accused walked after the deceased. As witnesses were helping the deceased outside the garage, the accused was heard to say, “He fell on a knife”.

7. [10]

   Witnesses tried to assist the deceased and triple zero was called. The triple zero calls were placed at 6:55pm.

8. [11]

   Mr Hannagan, Mr Mitchell, and Mr Elfverson called triple zero and reported the incident as follows:

9. [12]

   NSW Ambulance Paramedics arrived at the scene. They observed the deceased lying on the ground outside the garage door with several persons including the accused crowding around him and attempting to render first aid. The ambulance officers treated the deceased for a stab wound to the chest and commenced cardiopulmonary resuscitation (“CPR”) as he was in cardiac arrest. He was declared deceased at 7:57pm.

10. [13]

    Police arrived at the premises at about 7:06pm. Senior Constable Mitchell Heydon activated his Body Worn Video (“BWV”) and recorded a conversation with the accused, as follows:

11. [14]

    One of the objections relates to the last representation by the accused, which the Crown relies upon to demonstrate the accused’s efforts to prevent the police from entering the house. The Crown relies upon this representation as evincing a consciousness of guilt of an unlawful killing. I will in due course deal with this objection.

12. [15]

    The police called the accused back and entered the front door in an attempt to secure the premises. They were followed by the accused who indicated that a large knife lying on the kitchen floor, in the doorway to the garage, was the knife that caused the wound to the deceased. The accused told police, “There it is”.

13. [16]

    A crime scene was established at the premises. Police conducted a walk-through of the premises. Police also obtained versions from all persons present. The accused and Mr Elfverson claimed to have seen the deceased fall while playing with the knife. The other witnesses, Mr Hannagan, Mr Mitchell, and Mr McCracken denied seeing how the deceased sustained the wound to his chest and said that they only became aware of the incident after he entered the garage already injured.

14. [17]

    The version provided by the accused at the scene, on 9 December 2022, was that he was holding a towel on the deceased and was being told what to do by the triple zero operator. The accused said the deceased kept passing out, and the accused was sticking his fingers down the deceased’s throat. He also said that he had stepped in blood and had not washed the blood off.

15. [18]

    The accused was asked whether the deceased stood back up after he had slipped. The accused responded:

16. [19]

    The knife which inflicted the fatal wound was located on the floor directly inside the door to the rear garage area. It is described as a large bayonet style knife, silver in colour with masking tape wrapped around the handle area. The knife was examined. It is 58 cm in total length. The blade is approximately 41 cm in length. There was wet material on the tip of the blade that extended from the tip of the blade to approximately 9 cm along the blade. The wet material was evenly located on both sides.

17. [20]

    The accused’s fingerprints were located on three positions on the blade of the knife.

18. [21]

    On 9 December 2022 the accused participated in an interview with police as a suspect not under arrest. During the interview the accused stated:

19. [22]

    Later in the same interview, the accused said:

20. [23]

    Regarding the deceased tripping over while holding the knife, the accused said, “I don’t know if he kicked that door thing coming like as he was coming in, you know the little door trim…”. When asked what the deceased was doing with a knife before he tripped, the accused said, “I wasn’t even paying attention.”

21. [24]

    The accused was asked about the knife. He said, “it’s…a big ornament knife… it’s like a sword…I don’t know where he got that from. Obviously in my house. But I don’t know where it come from”. When asked if it was his knife, the accused said, “It was an ornament knife. I don’t know where that come from, that’s not mine”. When asked if he had seen the knife in his house before, the accused replied, “Yeah”.

22. [25]

    The accused said that he was walking from his bedroom to the kitchen when he saw the deceased inside the kitchen area, directly in front of the external door leading to the garage, and this is where the deceased tripped or fell.

23. [26]

    The accused said that Mr Elfverson was present and saw what happened. The accused also said that Mr Elfverson told him that the deceased had tripped over and landed on the knife.

24. [27]

    During the police investigation, the witnesses gave varying versions of what occurred at the premises.

25. [28]

    On the evening of 9 December 2022, Mr Elfverson provided a version which was recorded on BWV. This version was consistent with the deceased “falling” on the knife. The Crown Case is that this version is untrue.

26. [29]

    The witness provided statements on 11 and 13 December 2022. He provided a further statement on 22 December 2022. He said that his original version was untrue and that he was scared to “get his friend Dom in trouble”.

27. [30]

    In his subsequent account, Mr Elfverson told police that on the night in question he said to the accused, “You better not have fucken done anything”. The accused replied, “I promise you I didn’t”. The witness claimed that he had not seen the knife on the day of the incident. On a day after the incident, Mr Elfverson asked the accused what had happened. The accused said, “I did it”. When asked why, he replied, “Something came over me and I snapped”.

28. [31]

    Mr Hannagan provided his first statement to police on 13 December 2022. He provided a second statement on 6 January 2023. In his second statement, Mr Hannagan provided the following version of the incident:

29. [32]

    Jordan Mitchell provided a statement to police on 18 December 2022, and a further statement on 12 January 2023, giving the following version:

30. [33]

    Mr McCracken did not observe anyone arguing, drinking, or taking drugs. He saw the accused and deceased walk into the house and less than five minutes later the deceased walked into the garage with his hand on his chest and said, “I need to go to the hospital”. The witness did not see anyone with a knife or weapon.

31. [34]

    Mr McAnally told the police that they were all in the garage “smoking cones”. He was in the garage when he saw the deceased walk into the garage and through the door into the kitchen. A few minutes later he saw the deceased walking from the kitchen into the garage, holding his chest. The accused then came into the garage.

32. [35]

    On 12 December 2022, the following conversation between the accused and Mr Elfverson was captured on a listening device:

33. [36]

    The accused then said, “I dunno like what happened I flipped the switch, like I walked up there and he (IND)”. Mr Elfverson replied, “It’s cos yous were slapping, cos yous were slapping”. The accused then said:

34. [37]

    The Crown Case is that the reference to going back into his room was a reference to going into his bedroom to get the knife that the deceased was stabbed with.

35. [38]

    Later, on 12 December 2022, the accused had another conversation with Mr Elfverson during which he said, “If I fold that’s me folding. I’ll go I fuckin did it, whack me, take me. I’ll but if the guilt gets too much that’s what I’ll do”. Mr Elfverson said, “you’ll just do your time”. The accused said, “Yeah, I’ll I’ll just do the time for what I did”.

36. [39]

    The accused went on to say, “But if I can try to get away with it, and we can all get away with it eetswa. But I know I just want the other charge for, then I can only do a couple of years. I’m happy with a couple years, that charge bro that’s put me over ten…ten to fifteen”. Later on, the same day, the accused was talking to his brother and Mr Elfverson. He described pinning the deceased in the corner of the garage when they were having a “slap”. The accused said the deceased could not get out and the accused went back inside. Mr Elfverson said, “No ‘cause you took his, you took his, you took his”. The accused said, “… and he just kept walking, he was like here (IND) shaped up”. Emanuel Saliba said, “Even when you had that?”. The accused said, “Yeah (IND) I just went (the accused makes two loud slapping sounds) and he went ahhh, ahhh and he’s like ‘You got me’.”

37. [40]

    On 13 December 2022, the accused had a conversation with Mr Elfverson during which he indicated that no charges could be laid if “everyone” kept their mouths shut. On the same day, the accused spoke to Mr Elfverson about attending the police station:

38. [41]

    A post-mortem examination was conducted. The deceased suffered two stab wounds to his torso. The stab wound to his chest revealed that the wound tract was confirmed to be “up to down at a sharp angle”. The forensic pathologist opined that some degree of force was required for the knife to penetrate the deceased’s clothing, skin, and cartilage.

39. [42]

    Forensic results from the post-mortem examination confirmed the presence of cannabis in the deceased’s system. No alcohol, opiates, or amphetamines were detected in his blood. The accused was placed under arrest on 22 December 2022. He denied involvement in the deceased’s death.

Categories of Objections

1. [43]

   The evidence to which objection is taken has been helpfully set out in a table provided by the Crown and marked MFI 3 on the voir dire. Although I address each category of objection below, I have also attached to this judgment a copy of the table, indicating each ruling in the fifth column. I have done so to assist the parties by providing easy reference to the rulings in respect of each objection.

2. [44]

   The Crown seeks to adduce evidence from several witnesses about the accused’s possession and use of the asserted murder weapon in the weeks or months before the incident. The Crown relies upon this evidence to establish that the weapon was owned by the accused and kept at his house, on occasions being observed in his bedroom.

3. [45]

   It is contended, on behalf of the Crown, that the evidence is relevant to establish that the accused had control over the weapon in the period leading up to the incident. The Crown also relies upon the evidence to establish that the accused had a “familiarity and affinity” with the weapon such that he knew that it was capable of inflicting very serious bodily harm.

4. [46]

   It is important to commence by observing that Ms Khalilizadeh, on behalf of the accused, has very properly identified what is not in issue in the trial. There is no issue that the accused owned the knife, being the asserted murder weapon, and that it was in his house. There is no issue that the accused possessed the knife on the night of the incident. These matters will not be in issue in the trial and the jury will be told that they are not matters in issue in the trial.

5. [47]

   It should also be observed that the evidence will establish that the accused, when asked by the police, indicated that the large knife lying on the kitchen floor, in the doorway to the garage, was the knife that caused the injury to the deceased. That knife was seized by police and later examined. Photographs of it will be before the jury. The knife is approximately 58 cm in total length. The blade is approximately 41 cm in length. The photographs clearly depict the appearance of the knife. The blade is long, pointed, and sharp. There is no question, in my view, that the features of the knife clearly indicate that the implement can cause really serious bodily harm.

6. [48]

   In all likelihood, the implement itself will be tendered and become an exhibit in the trial.

7. [49]

   Although there will be some repetition in briefly setting out the respective submissions, I will deal with each objection discretely.

8. [50]

   As indicated above, the Crown relies upon this category of evidence to establish that the asserted murder weapon was owned by the accused and kept at his house, on occasion in his bedroom. He had control and dominion over the implement. The accused had a familiarity and affinity with the implement such as to have fully understood that it had the capacity to cause really serious bodily harm. For convenience, I will refer to the reliance by the Crown on this category of evidence as the “familiarity and affinity argument”.

9. [51]

   In his statement dated 22 December 2022, Mr Elfverson states, “I have seen Dom holding this knife on a couple of occasions and for photos.”

10. [52]

    The accused objects to the evidence pursuant to ss 55 and 137 of the Evidence Act 1995 (NSW). The accused submits that the evidence does not go to a fact in issue, there being no issue in the trial that the knife belonged to the accused and was in his house. Nor is there any issue that he was in possession of it on the night of the incident.

11. [53]

    If relevant, in light of the issues in the trial, the probative value of the evidence is low and outweighed by the danger of unfair prejudice. The asserted prejudice is that the evidence about the accused’s previous possession of the knife, including being photographed holding it, tends to indicate an obsession or preoccupation with the knife and a preoccupation with being in possession of it and posing for photographs with it. Furthermore, the appearance of the knife could leave no doubt that it was an implement capable of inflicting serious bodily harm.

12. [54]

    In light of the nature of the implement, there is a real risk that the jury would misuse the evidence by engaging in tendency reasoning, namely, that the accused had a tendency to be preoccupied with and in possession of a dangerous weapon. In the alternative, there is a real risk that the evidence would be used as bad character evidence.

13. [55]

    I am not persuaded that this evidence is relevant, having regard to the issues in the trial. In the alternative, the probative value of the evidence is weak. The probative value of the evidence is outweighed by the danger of unfair prejudice, namely, that the jury may wrongly reason that the accused had a preoccupation with the knife. Not only was he seen holding it on a “couple of occasions” but also posing with it “for photos”.

14. [56]

    The danger of unfair prejudice must be considered in light of the totality of the evidence pressed by the Crown in respect to this category of evidence.

15. [57]

    Accordingly, the evidence of Mr Elfverson in paragraph 8 of his statement dated 22 December 2022 is inadmissible.

16. [58]

    The Crown presses the following evidence from Mr Mitchell:

17. [59]

    The Crown relies upon the evidence for the same reasons set out above. The objection is taken on the same grounds, namely, ss 55 and 137 of the Evidence Act. For the reasons set out at [53]-[55], I reject the evidence except for the representation made by Mr Mitchell that he had noticed the knife “sitting on Dom’s bedside table in his bedroom…about 2-3 weeks before the 09/12/22”.

18. [60]

    This portion of the evidence is relevant to the circumstances immediately preceding the infliction of the injury to the deceased. The representation, together with other evidence in the case, is relevant to where the knife was situated on the night in question and proximate to the incident giving rise to the allegation.

19. [61]

    During the course of oral argument, the Crown indicated that the only paragraphs (about which there was controversy) pressed, are paragraphs 14 to 16 of Mr Williams’ statement dated 12 December 2022. In those paragraphs the witness states that a “few months ago” (prior to the incident) he was at the accused’s house and observed the accused and the deceased “mucking around with each other”. The accused had a “big knife with a white coloured handle, and he was waving it around slowly in front of Bailey and the blade cut the side of Bailey’s hand near his [pinky] finger”. The witness then described the injury.

20. [62]

    At paragraph 16, Mr Williams describes the blade and said that he saw it again in the garage sitting on a table.

21. [63]

    Objection is taken to this evidence pursuant to s 137 of the Evidence Act. The Crown presses the evidence, contending that it demonstrates knowledge on the part of the accused that the knife was capable of causing injury.

22. [64]

    I am not persuaded that the evidence should be admitted. Although the evidence is capable of showing that the knife could cause injury, its probative value is low. As indicated above, there is no doubt, having regard to the features of the knife, that it is capable of causing injury, indeed serious injury.

23. [65]

    The low probative value is outweighed by the danger of unfair prejudice. The unfair prejudice is that there is a real risk that the jury will misuse the evidence either by engaging in tendency reasoning (a tendency to use the knife to cause injury to the deceased) or reasoning that the accused is a person of bad character.

24. [66]

    Accordingly, the evidence is not admissible.

25. [67]

    The evidence of Senior Constable Barrett relates to several images that the accused had posted on his Instagram page. The photographs depict the accused together with other men. The accused is in possession of the knife alleged to be the murder weapon.

26. [68]

    During the course of oral argument, the Crown narrowed the evidence which was pressed to a cropped version of “photograph 1”. The cropped version of the photograph depicts the hand of the accused holding the alleged murder weapon.

27. [69]

    As previously indicated, there is no issue that the accused owned the knife that is alleged to be the murder weapon. A cropped photograph depicting his hand holding the knife does not go to an issue in the trial. In the alternative, to the extent that the evidence has some slight probative value, it is outweighed by the danger of unfair prejudice, namely, the real risk that the jury will reason that the accused had a preoccupation with the knife, posing for photographs while in possession of it.

28. [70]

    In addition, although the Crown has properly attempted to limit the prejudice by suggesting a cropped version of “photograph 1”, the editing itself may lead the jury to speculate as to what else is depicted in the photograph.

29. [71]

    I reject the evidence. I am not persuaded that it is relevant. In the alternative, its probative value is outweighed by the danger of unfair prejudice.

30. [72]

    Paragraph 7 is not pressed. During the course of oral argument, the Crown narrowed its reliance upon parts of paragraphs 8 and 12.

31. [73]

    The Crown presses the evidence that Mr Thornton had previously observed the accused with a knife, alleged to be the knife which caused the fatal wound to the deceased. The witness describes it as a “long like ‘katana’ looking thing”. Mr Thornton goes on to describe the knife and states that the accused would keep the knife in his room and “would go into his room and get it”.

32. [74]

    The Crown also presses evidence from Mr Thornton that he had seen the accused with the knife “about a week or two before Bailey died”.

33. [75]

    In addition to the evidence from Mr Thornton that the accused was previously in possession of the knife, the Crown relies upon the representations of Mr Thornton that the accused “would make comments like, ‘imagine if this [through] you, it would go in one side and out the other’”, as evidence of the accused’s knowledge that the knife was capable of causing serious injury.

34. [76]

    I am not persuaded that the evidence is relevant to a fact in issue, except insofar as the evidence establishes that the accused would keep the knife in his room. The evidence about where the accused would keep the knife (together with other evidence on this issue) is relevant to the whereabouts of the knife on the night the incident occurred.

35. [77]

    In the alternative, the evidence is excluded by virtue of s 137. There is a real risk that the jury would misuse the evidence by reasoning that the accused had a preoccupation with the knife. It is evidence from which there is a real risk that the jury would infer bad character on the part of the accused.

36. [78]

    In relation to the evidence that the accused “would make comments like ‘imagine if this [through] you, it would go in one side and out the other’”, while relevant because it goes to the accused’s understanding of the knife’s capacity to cause serious injury, I reject it pursuant to s 137 of the Evidence Act.

37. [79]

    The probative value of the evidence is low in circumstances where the implement is obviously capable of causing serious injury. The jury will have the benefit of photographs and the implement itself (in the event that it is tendered). To the extent that the evidence does have some probative value, it is outweighed by the real risk that the jury will misuse the evidence by reasoning that the accused had a preoccupation with the knife such as to give rise to an inference of bad character.

38. [80]

    Accordingly, I reject the evidence except insofar as the witness can say that the accused kept a knife in his room. He can also provide the description of the knife.

39. [81]

    To be clear therefore, the evidence falling into the category of “the accused’s familiarity and affinity with the knife said to be the murder weapon”, is not admissible except insofar that Mr Mitchell can say that he noticed the knife sitting on the accused’s bedside table in his bedroom, and insofar as Mr Thornton can say that the accused kept the knife in his room.

40. [82]

    Care should be taken in adducing that evidence, to prevent the witnesses from giving an account of seeing the accused handling the knife previously.

41. [83]

    The Crown relies upon evidence from Senior Constable Heydon about the conversation with the accused at the scene regarding entering the house to find a knife. Objection is taken to the last sentence of that conversation where the accused is alleged to have said, “I’ll grab it bro, I like privacy in my house”.

42. [84]

    The Crown relies upon the conversation as evidence of consciousness of guilt and evidence that “rebuts accident”. I am unclear as to how the evidence is a rebuttal of an assertion by the accused that the injury was the result of an accident.

43. [85]

    Objection is taken to the evidence pursuant to ss 135, 137 and 90 of the Evidence Act. The accused submits that the evidence is misleading. There is context to the accused’s discomfort with the police entering the property in circumstances where the house contained a “grow tent”, cannabis, and firearms. That evidence will not be adduced in the trial. In those circumstances, the evidence of the accused’s reluctance for police to enter his house gives the misleading impression that the accused was exhibiting reluctance for reason associated with consciousness of guilt of the charged offence, as opposed to some other offending conduct.

44. [86]

    For the same reason, the evidence is said to be inadmissible pursuant to s 137.

45. [87]

    The impugned evidence is likely an admission. It is submitted on behalf of the accused that the “circumstance” that gives rise to unfairness is the context raised about the possible true nature of the accused’s reluctance.

46. [88]

    I am not persuaded that the evidence is admissible. First, the evidence, when taken together with other evidence in the trial, is not evidence of consciousness of guilt. Although the accused said, “I’ll grab it bro, I like privacy in my house”, he put up no resistance immediately after that representation, when police insisted that they enter the property. On entering the property, the police were followed by the accused who immediately pointed the knife out to them.

47. [89]

    Alternatively, the evidence has very low probative value and is outweighed by the danger of unfair prejudice. The danger of unfair prejudice is that the jury would misuse the evidence as being associated with consciousness of guilt of the offence charged, when there is a more compelling explanation, namely, that the accused did not want the police to find the drugs and firearms. In addition, the evidence is potentially misleading for the same reasons. Having excluded the evidence pursuant to ss 135 and 137, it is not necessary to determine the s 90 objection.

48. [90]

    The sentence objected to on behalf of the applicant is not admissible.

49. [91]

    A category of evidence relied upon by the Crown to establish motive/state of mind is the debt owed by Mr Thornton to the accused as follows:

    1. (1)

       The portions in bold represent the evidence that the Crown now seeks to adduce from Mr Thornton’s statement dated 5 May 2023 at [15]-[17]:

    2. (2)

       Edited Instagram messages between Mr Thornton and accused which are set out in the following table (MFI 4):

    3. (3)

       Evidence in Caroline Micallef’s statement dated 15 June 2023 at [7]:

50. [92]

    The Crown relies upon the evidence of Ahmad Akouch, Dylan Thornton, and Caroline Micallef about debts owing to the accused as evidence relevant to the accused’s state of mind and motive. This category of evidence is made up of two subcategories. First, a debt owed by the deceased to the accused. Second, a debt owed to the accused by Mr Thornton which the accused enlisted the assistance of the deceased in attempting to recover.

51. [93]

    Objection is taken to the evidence on three bases, namely, pursuant to s 55; not meeting the preconditions set out in s 65; and, pursuant to s 137 of the Evidence Act.

52. [94]

    Briefly stated, the accused submits that the evidence that Mr Thornton owed a debt to the accused is not relevant to a fact in issue. Furthermore, evidence that the accused sought the assistance of the deceased in recovering that debt is irrelevant.

Sections 65 and 66A of the Evidence Act

1. [95]

   I will deal first with the Crown’s application pursuant to s 65 of the Evidence Act although I appreciate that the starting point is relevance.

2. [96]

   The Crown seeks to adduce the conversations between Mr Thornton and the deceased and between Ms Micallef and the deceased (as set out above), pursuant to s 65 of the Evidence Act. Section 65 relevantly provides:

3. [97]

   In respect of the evidence of the conversation between the deceased and Ms Micallef, namely that the deceased was feeling pressured and felt that he was “stuck between his friend and his cousin”, the Crown also relies on s 66A of the Evidence Act.

4. [98]

   The Crown submits that the statements made by the deceased to Mr Thornton were made very proximate to the events in question. The proximity is established when viewed in the context of the messages being sent on the same day by the accused to Mr Thornton. The Crown further submits that the circumstances in which the representations were made, make it unlikely that it is a fabrication. Mr Thornton states that the deceased “sounded pressured” and was “insistent”.

5. [99]

   In essence, and summarised briefly, the accused submits that the Crown cannot establish that the representations were made “when or shortly after the asserted fact occurred” or that the representations were made “in circumstances that make it unlikely that the representations are fabrication”. The asserted fact, for the evidence to have any relevance, must be that the accused wanted to see Mr Thornton that day. It is submitted that it is not apparent from the evidence as to when it was, that he told the deceased that he wanted to see Mr Thornton. Therefore, the requirement that the representation be made “shortly after” the asserted fact cannot be made out.

6. [100]

   In addition, the accused submitted that the Crown cannot establish that the circumstances in which the representation was made make it unlikely that the representations are fabrication. In support of that contention, the accused relies upon other evidence in the voir dire that he felt “stuck” between his friend and his cousin, a circumstance that bears upon whether the representation was a fabrication. Another circumstance relied upon is that the conversation appears to centre around drugs and a debt, a context which is likely to give rise to untruthful exchanges in order to “settle” things.

7. [101]

   A further ground relied upon by the accused, described as the overarching difficulty with the admissibility of the evidence, is that the representations uttered by the deceased are said to be based on things said to the deceased by the accused. If so, ss 62 and 82 of the Evidence Act are enlivened.

8. [102]

   The representations made by the deceased appear to be based on the accused telling the deceased that he wanted to see Mr Thornton and that he wanted the debt paid. That being the case, the representations would be based on admissions made by the accused as they are previous representations adverse to the accused’s interest in the outcome of the proceedings. In those circumstances, the evidence cannot be admitted pursuant to s 65, because it is subject to s 62, the restriction to first-hand hearsay.

9. [103]

   Alternatively, the accused submits that admissions by the accused are restricted to first-hand admissions by operation of s 82 of the Evidence Act. Even if s 65 were somehow overcome, s 82 would operate to exclude the representations as second-hand hearsay admissions.

10. [104]

    In respect to the representations made by the deceased to his mother, the accused submits that there is no evidence as to the temporal proximity between the making of the representations and the asserted fact. Furthermore, there is insufficient evidence as to the “circumstances” surrounding when the representation was made in order to permit an assessment of whether it is unlikely that the representations are fabrication.

11. [105]

    The Crown, in submissions in reply, does not press the deceased’s impression of the accused’s mood being “pissed off” because it is an inadmissible opinion. Furthermore, the Crown does not press the words “Just, he might do something Dyl”.

12. [106]

    Otherwise, the Crown presses the evidence, submitting that the combination of the evidence of Mr Thornton of what the deceased had represented to him, together with messages sent by the accused at 18:25, leaves the inescapable inference that the accused had conveyed to the deceased, on the day in question and proximate to the deceased’s representations to Mr Thornton, what he wanted him to inform Mr Thornton and retrieve from Mr Thornton.

13. [107]

    In relation to the “broader overarching barrier to admission”, the Crown rejects that the representations can be categorised as admissions.

Consideration

1. [108]

   The asserted facts relied upon by the Crown in respect of the evidence of Mr Thornton were identified by the Crown at the hearing, as follows:

2. [109]

   I am prepared to accept that the representations were made proximate to the asserted facts, that is, approximate to a time when the accused had conveyed to the deceased these requirements or demands insisting that Mr Thornton attend his residence to repay his debt. I am also prepared to accept that the representations were made in circumstances that make it unlikely they were fabrication.

3. [110]

   However, the representations attributed to the deceased must be based upon representations made by the accused to him, demanding or insisting that the deceased ensure that Mr Thornton attended the accused’s residence with the money that was owed. There is no other available inference on the evidence.

4. [111]

   The representations made by the accused, upon which the deceased was acting and upon which the hearsay representations were made, are representations against interest, and therefore admissions by the accused. The Crown seeks to rely upon the hearsay representations of the deceased as evidence establishing a motive and/or the relevant state of mind on the part of the accused. In essence, the Crown relies upon the hearsay representations of the deceased to establish that the accused was so angry about the unpaid debt, that he had motive to stab the deceased with the relevant intention.

5. [112]

   Understood in that way (which is the only way the representations can be relevant) the hearsay representations do rely upon admissions made by the accused. They are therefore second-hand hearsay and are not captured by s 65 of the Evidence Act: see ss 62 and 82 of the Evidence Act.

6. [113]

   If I am wrong in that analysis, I am of the view that the evidence is not relevant to a fact in issue in the trial.

Section 55 - Relevance

1. [114]

   Section 55(1) of the Evidence Act provides:

2. [115]

   I do not accept that the evidence of the debt owed by Mr Thornton is relevant to a fact in issue in the trial. Although, taken at its highest, the evidence establishes that the accused enlisted the assistance of the deceased to try to recover that debt, the evidence does not establish a basis for a rational inference that the accused was angry with the deceased for failing to recover that debt, let alone evidence of a state of mind from which it could be inferred that he stabbed him with an intention to kill the deceased or occasion to him grievous bodily harm.

3. [116]

   With respect, such an inference, on the evidence available, is somewhat fanciful. This is particularly so having regard to the relationship between the accused and the deceased. They were cousins. There is some evidence that at a time proximate to the fatal injury being caused, the pair were engaging in “slapboxing” with each other. The accused was not angry with the deceased, nor was there any reference to the debt owed by Mr Thornton.

4. [117]

   In the alternative, if relevant, the probative value of the evidence is low. It is outweighed by the danger of unfair prejudice. There is a real risk that the jury would misuse the evidence to engage in impermissible reasoning as to the nature of the debt owed by Mr Thornton. It seems to me that no measure of “sanitising” the evidence (including the text message communication) can displace that real risk. It is highly likely, in the circumstances of this case, that the jury would reason that the debt owed by Mr Thornton is drug related. There is no evidence from which any other reason for the debt could be inferred.

5. [118]

   Accordingly, the evidence of a debt owed to the accused by Mr Thornton is not admissible.

6. [119]

   The Crown also seeks to adduce hearsay evidence from the witness, Jack Lewis of the conversation between the deceased and Mr Thornton as set out above at [91(1)]. Mr Lewis was present with Mr Thornton at the time of the telephone conversation and was able to hear the conversation on loudspeaker.

7. [120]

   The asserted facts identified by the Crown are as follows:

8. [121]

   For the same reasons, the evidence is not admissible. I am not satisfied that s 65 is enlivened. However, even if I am wrong in that respect, the evidence is inadmissible or, alternatively, is excluded pursuant to s 137 of the Evidence Act.

9. [122]

   During the hearing, the Crown identified the particular representations sought to be relied upon as follows:

10. [123]

    The Crown seeks to adduce the evidence pursuant to s 66A of the Evidence Act. The representations relied upon relate to the deceased’s feelings about the tension between the accused and Mr Thornton, namely that he was feeling pressured by the accused and that he felt that he was “stuck” between his friend and his cousin.

11. [124]

    The representations, even if contemporaneous, are not relevant to a fact in issue. The deceased’s feelings of being pressured or being “stuck” between his friend and his cousin, say nothing about the accused’s motive or state of mind at the time that the deceased sustained the fatal injury. The evidence goes to the state of mind of the deceased not the accused. Alternatively, the probative value is very low, and the danger of unfair prejudice is the insufficiency of evidence relating to what the accused did or said that caused the deceased to feel pressured. The accused would be prejudiced in not being able to test the evidence in circumstances where the Crown are seeking to rely upon it to establish motive and/or an intention to kill or cause grievous bodily harm to the deceased.

12. [125]

    The hearsay evidence of Ms Micallef is therefore inadmissible.

13. [126]

    I turn to consider the evidence of the debt owed by the deceased. That evidence is largely from the witness Mr Akouch. Mr Akouch gave an account to police about a conversation with the accused in which the accused said that he had given the deceased $400 because he wanted to go to a brothel. The accused also said that the deceased still owed him the money and he better pay him back stating, “He better or I’ll stab the cunt”.

14. [127]

    Mr Akouch said that the accused, “sort of laughed when he said it and we all took it as a joke, so everyone laughed. Dom didn’t seem angry when he said it and was calm. Dom showed me his [n]otes on his phone, and I saw under Bailey’s name $400 + $400”.

15. [128]

    The evidence of Mr Akouch is objected to pursuant to s 137 of the Evidence Act. The probative value of the evidence is said to be low having regard to the fact that it does not appear that the accused was angry with the deceased because of the outstanding debt. Indeed, on the night of the incident and proximate to it, the pair were “mucking around” and “slapboxing”. The danger of unfair prejudice is a real risk that the jury will reason that the nature of the debt (in particular the reference to “$400”) was drug related.

16. [129]

    The evidence is relevant to a fact in issue, namely, the accused’s state of mind and possible motive. I am not of the view that the evidence pertaining to the $400 loaned to the deceased so that he could go to a brothel, gives rise to unfair prejudice. Nor am I persuaded that the evidence that the deceased owed the accused a further $400 gives rise to unfair prejudice such as to exclude the evidence.

17. [130]

    The evidence is relevant to the accused’s state of mind and possible motive. Whether it is compelling evidence of motive is a matter for competing submissions to the jury. The evidence of Mr Akouch is that the accused was laughing and not apparently taking the matter very seriously when he was speaking about the deceased’s debt. Furthermore, there is evidence that the deceased and the accused were apparently “slapboxing” at the time proximate to the infliction of the injury. Such conduct may be inconsistent with a state of mind of anger or aggression on the part of the accused towards the deceased because of an unpaid debt.

18. [131]

    However, these are questions for the jury to determine. Insofar as there may be some prejudice occasioned; I am satisfied that the jury can be properly directed not to speculate about the reason for the further $400 loan.

19. [132]

    The evidence will have to be adduced extremely carefully to not suggest that the notes, kept by the accused, were in the nature of some form of drug register.

20. [133]

    Accordingly, the evidence of a debt owed by Mr Thornton is not admissible. The evidence that the deceased owed the accused “$400 + $400” is admissible.

21. [134]

    For completion, to the extent that I have determined that evidence is not admissible pursuant to s 137 of the Evidence Act, I have concluded that the danger of unfair prejudice cannot be cured by judicial direction.

Hearsay Evidence pursuant to s 65 - representations made by the deceased shortly after he was stabbed

1. [135]

   The Crown seeks to adduce hearsay evidence that shortly after the deceased was stabbed, he said to the accused, “What the fuck? Why do you do that?”.

2. [136]

   I am satisfied that the representation was made when or shortly after the asserted fact occurred, the asserted fact being the stabbing. I am also satisfied that it was made in circumstances that make it unlikely that the representations are fabrication. The deceased had just suffered a significant wound that resulted in his death a short time later. It was a spontaneous representation. I am not persuaded that the deceased was so affected by cannabis that the representation was somehow unreliable. The evidence is therefore admissible pursuant to s 65 of the Evidence Act.

3. [137]

   Insofar as the probative value of the evidence is outweighed by the danger of unfair prejudice or is potentially misleading, namely that it suggests that the accused had inflicted violence on the deceased previously, I am satisfied that the prejudice can be cured by judicial direction.

4. [138]

   Accordingly, the evidence is admissible.