Citation: R v Saliba [2025] NSWSC 61
Court: Supreme Court of New South Wales
Date: 20 February 2025
Judge(s): Yehia J
Background
The accused faced a single count of murder arising from the death of his first cousin on 9 December 2022 at a residential property in Bomaderry. The Crown alleged the accused retrieved a large bayonet-style knife from his bedroom and stabbed the deceased twice during a confrontation that followed a dispute over a container of cannabis or money. The deceased died at the scene from a stab wound to the chest.
The accused's account, given both at the scene and in a subsequent police interview, was that the deceased had been "joking around" with a knife and accidentally fell on it or was cut as he fell. Multiple witnesses were present, and their accounts varied. The accused's fingerprints were found at three positions on the blade of the knife.
Before the trial commenced, the accused filed a Notice of Motion objecting to several categories of evidence the Crown proposed to lead. Yehia J heard pre-trial argument across three sitting days and delivered written reasons on 20 February 2025, in advance of the trial date of 10 March 2025.
Legal Issues
- Whether evidence of the accused's familiarity and affinity with the murder weapon was admissible, having regard to its probative value and the danger of unfair prejudice under ss 55, 135, and 137 of the Evidence Act 1995 (NSW)
- Whether various hearsay representations attributed to the deceased were admissible under s 65, including whether the preconditions for that section were satisfied
- Whether certain representations were second-hand hearsay, and whether the s 82 exception (admissions) applied so as to remove hearsay objections
- Whether the accused's statement to police ("I got rid of it bro... I like privacy in my house") was admissible as evidence of consciousness of guilt
- Whether evidence of debts owed to the accused (including by the deceased) was relevant and admissible, and whether its probative value was outweighed by the danger of unfair prejudice
Decision
Familiarity with the murder weapon. Yehia J ruled on the admissibility of evidence going to the accused's familiarity and affinity with the large bayonet knife. The judgment identified a category of such evidence and assessed each piece against the requirements of ss 55 and 137. Evidence whose probative value was outweighed by the danger of unfair prejudice was excluded, with the judge noting that where exclusion was ordered under s 137, a judicial direction could not cure the prejudice.
Hearsay evidence of the deceased. The Crown sought to lead evidence that, shortly after being stabbed, the deceased said to the accused: "What the fuck? Why do you always do that?" Yehia J held this statement admissible under s 65 of the Evidence Act. The representation was made at or shortly after the asserted fact (the stabbing), and the circumstances, including the spontaneous and contemporaneous nature of the statement and the severity of the wound, made fabrication unlikely. The judge was not persuaded that any cannabis consumption by the deceased rendered the statement unreliable. Although the words carry a potential implication that the accused had inflicted prior violence on the deceased, Yehia J was satisfied that a judicial direction could cure any resulting prejudice.
The accused's statement about the knife. The Crown relied on the accused's body-worn video statement "I got rid of it bro... I like privacy in my house" as evidence of consciousness of guilt. That objection was noted for separate treatment in the judgment, though the Crown's characterisation of the statement as reflecting an attempt to prevent police from entering the premises was recorded.
Debt evidence. Evidence that the deceased owed the accused "$400 + $400" was held admissible as relevant to a possible motive. Evidence concerning a debt owed by a third party (Mr Thornton) was excluded. The judge accepted that the debt evidence had some probative value in establishing motive, while also acknowledging countervailing considerations, including that a witness described the accused as laughing when discussing the debt and that the "slapboxing" observed before the stabbing may have been inconsistent with serious anger or aggression. The evidence was to be led carefully to avoid any suggestion that the accused's notes constituted a drug register.
Orders Made
• Evidence of a debt owed by Mr Thornton is not admissible
• Evidence that the deceased owed the accused "$400 + $400" is admissible
• Hearsay evidence of the deceased's representation "What the fuck? Why do you do that?" is admissible
Key Takeaways
- Under s 65 of the Evidence Act 1995 (NSW), a deceased person's hearsay representation is admissible where it was made at or shortly after the asserted fact occurred and the circumstances make fabrication unlikely. A spontaneous statement made by a person who had just suffered a fatal wound satisfied those preconditions here.
- Potential prejudice arising from a deceased's words, such as an implied reference to prior violence by the accused, does not necessarily render the evidence inadmissible if a judicial direction can adequately address that risk.
- Where evidence is excluded under s 137 on the basis that its probative value is outweighed by the danger of unfair prejudice, Yehia J held that a judicial direction cannot cure that prejudice, making exclusion the only remedy.
- Evidence of a debt owed by the deceased to the accused was admitted as potentially relevant to motive, even where competing evidence suggested the relationship between the parties was not acrimonious at the relevant time. Those competing considerations were treated as matters for the jury.
- Pre-trial evidentiary rulings in a murder trial may involve granular, piece-by-piece assessment of each item of evidence against multiple Evidence Act provisions, including ss 55, 62, 65, 66A, 82, 90, 135, and 137, with admissibility determined separately for each category.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 55, 62, 65, 66A, 82, 90, 135, 137
Cases:
- No cases were cited in the judgment as provided.