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Supreme Court 28 March 2025

R v Stephen; R v Tadrosse

[2025] NSWSC 283

Assault & violenceHomicide
CRIME EVIDENCE MURDER TWO CO ACCUSED JOINT CRIMINAL ENTERPRISE

Citation: R v Stephen; R v Tadrosse [2025] NSWSC 283
Court: Supreme Court of New South Wales
Date: 28 March 2025
Judge: N Adams J

Background

Two accused, described here by their roles as co-accused, face trial in the Supreme Court for the murder of an 86-year-old man and the violent assault of his 83-year-old wife at their Cherrybrook home in the early hours of 29 April 2020. The Crown's case is entirely circumstantial and centres on identity: there is no dispute the offences occurred, only that the accused were responsible. The accused are relatives of the victims.

The Crown case relies on phone call charge records, CCTV footage of two vehicles, toll records, a bank transfer between the accused shortly after the offences, and conduct alleged to reflect consciousness of guilt. Neither accused has provided a statement, and their defence statements simply deny involvement.

In August 2023, the NSW Crime Commission notified the Office of the Director of Public Prosecutions that it may hold material relevant to the prosecution, arising from closed hearings conducted under the Crime Commission Act 2012 (NSW). That material was potentially disclosable in the criminal proceedings, but subject to a statutory non-publication direction under s 45(1) of the Act. The DPP applied to the Supreme Court to unlock it.

  • Whether the court should issue a certificate under s 45(4) of the Crime Commission Act 2012 (NSW) requiring the Commission to produce the restricted evidence to the court for review.
  • Whether, having reviewed that material, the court should make a further order under s 45(5) releasing some or all of it to the parties, on the basis that the interests of justice so require.
  • What procedural fairness obligations arise toward witnesses whose compelled testimony may be released.
  • What portion, if any, of the Commission's evidence had a sufficient material bearing on the trial to warrant disclosure.

Decision

Adams J confirmed that the threshold for the s 45(4) order (production to the court) is not a stringent one and is "readily satisfied" where it may be desirable in the interests of justice for the court to inspect the material. That order was made on 16 December 2024 without opposition. The material was provided to the court in early February 2025.

After reviewing the material privately, the judge formed a tentative view that some of it should be released. Before making any order under s 45(5), the court adopted a two-stage procedural approach. First, counsel for the Crime Commissioner provided confidential submissions in a closed-court session, attended by neither the Crown nor the accused. The court then indicated which portion it was minded to release, allowing the relevant witness the opportunity to be heard on that specific question. This approach followed precedent from R v Quami (No 11) [2016] NSWSC 252 and R v Parkes; R v Sloan [2024] NSWSC 16.

The relevant witness maintained an objection to release. However, the court considered the basis of that objection and was not persuaded by it. The test applied under s 45(5) was whether the material would have a material bearing upon the trial. Only material meeting that threshold justifies release. The court concluded that the great majority of the Commission's material did not meet this standard.

A limited portion of the transcript from one hearing date was found to satisfy the test, confined to a narrow issue. The court granted release of those specific pages only. A separate confidential annexure setting out the content of the compelled testimony was prepared for the court file, to be held in a sealed envelope accessible only by order of a Supreme Court judge or higher.

Orders Made

  • The Crown's application for material to be released under s 45(5) of the Crime Commission Act 2012 (NSW) was refused, except for a limited portion: the NSW Crime Commission transcript of 15 June 2023, limited to pages 1 to 6 (lines 1 to 20 only) and pages 8 (from line 17) to the end of page 12.
  • All confidential material provided under the s 45(4) certificate, and confidential affidavits and other material provided for the s 45(5) application, are to be returned to the NSW Crime Commission, subject to an undertaking by its legal representatives to make the material available to the court as required.
  • Any application to access the sealed envelope containing the confidential annexure will not be considered without the NSW Crime Commission first being notified.

Key Takeaways

  • Under ss 45(4) and 45(5) of the Crime Commission Act 2012 (NSW), the release of compelled evidence held by the Crime Commission operates as a two-stage process: the court first obtains the material for its own inspection, then determines whether the interests of justice require disclosure to the parties.
  • The threshold for the initial s 45(4) order is low and "readily satisfied," whereas the s 45(5) stage requires the court to identify material with a genuine material bearing on the trial before ordering release.
  • A procedural fairness obligation arises toward witnesses whose compelled testimony may be released: the Supreme Court confirmed the practice of giving those witnesses an opportunity to be heard in closed-court sessions before any release order is made, consistent with R v Quami (No 11) and R v Parkes; R v Sloan.
  • A witness's objection to release is not determinative. Adams J weighed the objection but was not satisfied it outweighed the interests of justice in releasing the narrow portion of the transcript.
  • Where only a limited portion of Commission material satisfies the release test, the court may order disclosure of specific pages only, with the balance remaining protected and the court's confidential reasoning sealed on the file.

Legislation and Cases Referenced

Legislation:
- Crime Commission Act 2012 (NSW), ss 21, 24, 25, 27, 39, 45
- Criminal Procedure Act 1986 (NSW), s 142
- Director of Public Prosecutions Act 1986 (NSW), s 15A

Cases:
- Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
- R v Danishyar [2023] NSWSC 922
- R v Hawat (No 1) [2019] NSWSC 1583
- R v Jaghbir (No 1) [2020] NSWSC 762
- R v McCloskey (No 1) [2020] NSWSC 771
- R v Munshizada, Danishyar and Baines [2020] NSWSC 566
- R v Parkes; R v Sloan [2024] NSWSC 16
- R v Quami (No 11) [2016] NSWSC 252
- R v Stephen; R v Tadrosse (No 2) [2025] NSWSC 284