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Supreme Court 31 March 2025

R v Stephen; R v Tadrosse (No 2)

[2025] NSWSC 284

Assault & violenceHomicideTheft & property
EVIDENCE PRETRIAL RULING JOINT TRIAL ATTACKED BY ONE OF THE INTRUDERS NO ADMISSIONS TO MURDER ACTUALLY MADE OFFENDER

Citation: R v Stephen; R v Tadrosse (No 2) [2025] NSWSC 284
Court: Supreme Court of New South Wales
Date: 31 March 2025
Judge(s): N Adams J

Background

Two accused men face charges of murder and assault with intent to rob with wounding arising from a home invasion in Cherrybrook in the early hours of 29 April 2020. An elderly couple were attacked by masked intruders; the husband died from his injuries and his wife was seriously injured. The accused are relatives of the victims and both have pleaded not guilty.

From February 2021, police deployed a covert undercover operation targeting one of the accused. Undercover officers built a relationship with him over many months by drawing him into a fictitious criminal organisation. The operation culminated in December 2021 when the accused was questioned about the murders by a senior undercover operative posing as a criminal boss. Unlike many previous uses of this methodology, the accused never admitted to the offences. Instead, he maintained consistent denials and offered an evolving exculpatory account that indirectly implicated his co-accused.

The pre-trial hearing concerned whether the recordings of those conversations should be admitted at the joint trial. The accused sought exclusion on four separate grounds under the Evidence Act 1995 (NSW).

Legal Issues

  • Whether the undercover officers' conduct amounted to oppression under s 84 of the Evidence Act, rendering the statements inadmissible
  • Whether the evidence was improperly obtained within the meaning of s 138 of the Evidence Act
  • Whether it would be unfair to the accused to use the evidence against him under s 90 of the Evidence Act
  • Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act
  • Whether, if the covert evidence were admitted, the co-accused would be entitled to a separate trial

Decision

Issue 1: Oppression (s 84)

The court found that the prosecution established on the balance of probabilities that the undercover officers' conduct was not oppressive (at [333]). While loneliness, financial difficulty, and social isolation during COVID-19 were acknowledged as personal vulnerabilities, these factors did not render the operation psychologically burdensome or unjustly harsh (at [318]). The accused was a mature adult with independent connections and resources, and he was aware he was free to leave the group (at [318]). The court also noted that the accused's persistent refusal to admit involvement was itself an indication of his ability to withstand any pressure he felt (at [330]).

Issue 2: Improper Conduct (s 138)

The court held that the police conduct was not improper in the sense of failing to meet minimum standards of police conduct (at [360]). The length of the operation from February to December 2021 was not improper, the preliminary drug purchases in late 2020 did not form part of the deceptive phase, and no actual criminal offences were committed during the trust-building phase, only fictional crimes (at [354]-[355]). The commencement of the operation before the case had gone cold was not a breach of any requirement, and the cost and resource intensity of the operation was not a relevant consideration given the gravity of the alleged offences (at [356]).

Issue 3: Unfairness (s 90)

The court accepted that a significant amount of prejudicial material would need to be adduced to provide context for the statements. Despite this, the accused had not established on the balance of probabilities that there was anything unfair about the circumstances in which the statements were made (at [375]). Section 90 operates as a safety net after ss 84 and 138 have been considered; it addresses the fairness of using the evidence at trial, not the fairness of how it was obtained.

Issue 4: Unfair Prejudice (s 137)

The court excluded the evidence under s 137 (at [413]). The critical distinguishing feature from all previous reported cases involving this methodology was that the accused made no admission to the murder or assault. The Crown instead sought to rely on initial denials, partial admissions confirming already-known circumstantial evidence, and an evolving exculpatory account. The court assessed the probative value of the initial denials as having some value as possible consciousness of guilt (at [400]), the partial admissions as having some value as confirmatory evidence (at [401]), and the evolving exculpatory account as having moderate probative value when taken at its highest (at [403]). Weighing against admission, the court found the danger of unfair prejudice to be high. The jury would need to know the accused was willing to join what he believed was an organised criminal group and participate in criminal acts for payment (at [405]). There was a real risk the jury would reason impermissibly that someone willing to engage in organised crime was the sort of person who would commit a violent home invasion (at [407]). The court was satisfied that jury directions would not cure that prejudice, particularly given the moderate probative value of the evidence involved (at [413]). In previous cases where the evidence was admitted, the probative value of direct murder admissions had been so high that it outweighed the prejudice; that was not the position here (at [406]).

Issue 5: Separate Trial for the Co-accused

Because the covert evidence was excluded, the application by the co-accused for a separate trial no longer required determination (at [414]). The court noted, however, that had the evidence been admitted, a separate trial would almost certainly have been ordered, as the questioning had extensively implicated the co-accused and included material that would not have been admissible against him (at [415]-[417]).

Orders Made

  • The alleged admissions made by the accused on 6, 7, 13 and 14 December 2021 are excluded under s 137 of the Evidence Act 1995 (NSW)
  • The joint trial of both accused on 21 July 2025 is confirmed

Key Takeaways

  • For the first time in any reported Australian decision involving the "scenario" or "Mr Big" undercover methodology, statements obtained through this technique were excluded. The exclusion did not arise because the operation was oppressive or improper, but because the accused made no admission to the murder, leaving the Crown reliant on denials, partial confirmations of known evidence, and a shifting exculpatory story of only moderate probative value (at [398], [403], [413]).

  • Under s 137 of the Evidence Act, probative value is assessed at its highest without regard to credibility, reliability, or competing inferences. Where that highest assessed value is only moderate, even a moderately high risk of unfair prejudice may be sufficient to require exclusion (at [392], [413]).

  • The danger of unfair prejudice under s 137 is not confined to directly inculpatory material; it extends to the risk that context evidence showing willingness to engage in organised crime will lead jurors to engage in prohibited propensity reasoning, a risk the court found jury directions could not reliably cure in this case (at [407]-[412]).

  • An undercover operation lasting approximately ten months, involving fictitious criminal activity and payment to the target, does not automatically amount to oppressive conduct under s 84 or improper conduct under s 138, provided no actual offences are committed and no particular intellectual or psychological vulnerability of the accused is exploited (at [318], [331], [355], [360]).

  • Where covert evidence obtained through the scenario methodology is excluded, a co-accused's application for a separate trial founded solely on that evidence falls away. The court observed, however, that admission of such evidence in a joint trial would have been likely to cause the co-accused positive injustice where the questioning extensively implicated him and portions of the exculpatory account effectively pointed to him as the real offender (at [414]-[417]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) , ss 18, 98
- Evidence Act 1995 (NSW), ss 55, 84, 90, 137, 138, 142

Cases
- BJS v The Queen [2013] NSWCCA 123; (2013) 231 A Crim R 537
- Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67
- Deacon v The Queen [2019] NTCCA 21; (2019) 282 A Crim R 303
- Duke v The Queen (1989) 180 CLR 508; [1989] HCA 1
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Lauchlan v The State of Western Australia [2008] WASCA 227
- Mann v R [2023] NSWCCA 256
- McNamara v The King [2023] HCA 36; (2023) 98 ALJR 1
- Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Robinson v Woolworths Ltd (2005) 64 NSWR 612; [2005] NSWCCA 426
- R v Adams (No 2) [2016] NSWSC 1359
- R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238
- R v Cook [2004] NSWCCA 52
- R v Cowan; Ex parte Attorney General (2016) 1 Qd R 433; [2015] QCA 87
- R v Heffernan; R v Peters (Court of Criminal Appeal (NSW), 16 June 1998, unrep)
- R v Jelicic [2016] SASC 57
- R v Kilincer (No 2) [2021] NSWSC 829
- R v Rumsby [2023] NSWSC 229
- R v Simmons; R v Moore (No 2) [2015] NSWSC 143; (2015) 249 A Crim R 82
- R v Stephen; R v Tadrosse [2025] NSWSC 283
- R v Swaffield; Pavic v R (1998) 192 CLR 159; [1998] HCA 1
- R v Tortell (No 5) [2019] NSWSC 1665
- R v Weaven (Ruling No 1) [2011] VSC 442
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39