AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 25 July 2025

R v Stephen; R v Tadrosse (No 3)

[2025] NSWSC 823

Assault & violenceHomicide
EVIDENCE APPLICATION TO EXCLUDE EVIDENCE S 137 EVIDENCE ACT WHETHER VIEW WARRANTED WHETHER EVIDENCE CAN BE GIVEN BY AUDIO VISUAL LINK

Citation: R v Stephen; R v Tadrosse (No 3) [2025] NSWSC 823
Court: Supreme Court of New South Wales
Date: 25 July 2025
Judge(s): N Adams J

Background

Two accused, Tony Tadrosse and Danny Stephen, face a joint trial for the murder of an 86-year-old man and the armed assault with intent to rob of his 83-year-old wife at their Cherrybrook home in the early hours of 29 April 2020. The Crown case is entirely circumstantial, relying on CCTV footage, telephone records, and vehicle movements to establish the identity of the intruder or intruders.

Prior to the trial commencing on 28 July 2025, the court heard further pre-trial argument on four discrete matters: leave for the surviving victim to give evidence by audio-visual link, an application for a jury view, and the admissibility of two sets of telephone recordings involving the accused Tadrosse.

This judgment sets out the court's reasoning on those four matters. A separate judgment, R v Stephen; R v Tadrosse (No 4) [2025] NSWSC 824, addresses a further issue about the basis of criminal liability relied upon by the Crown.

Legal Issues

  • Whether Mrs Shahidy Saliba should be granted leave to give evidence by audio-visual link from her residence under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
  • Whether a view of relevant locations in Cherrybrook and Pennant Hills should be ordered under s 53 of the Evidence Act 1995 (NSW)
  • Whether Mr Tadrosse's telephone call to a cosmetic dentist ("Smile Concepts") on 28 April 2020 was admissible, having regard to ss 55 and 137 of the Evidence Act 1995 (NSW)
  • Whether Mr Tadrosse's calls to the National Coronavirus Helpline in the early hours of 29 April 2020 were admissible, particularly as evidence of consciousness of guilt, having regard to ss 55 and 137 of the Evidence Act 1995 (NSW)

Decision

Issue 1: Audio-visual link evidence

The court granted leave for Mrs Saliba, now aged 88, to give her evidence from her home by audio-visual link (at [11]-[17]). Medical evidence confirmed she is essentially housebound due to severe mobility issues. She is also deaf in one ear, blind in one eye, and cannot read in either Arabic or English. Both accused's counsel did not oppose the application. The court was satisfied under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) that the necessary facilities were available, that evidence could more conveniently be given from her home, and that doing so would not be unfair to any party (at [16]).

Issue 2: Jury view

The court ordered a view of relevant areas in Cherrybrook and Pennant Hills, including the location of CCTV cameras and the vicinity of the victims' residence (at [18]-[27]). Neither accused opposed the application. The court was satisfied that the view would assist the jury in resolving factual issues about the geography of the area and the distances between CCTV camera locations, matters central to the Crown's circumstantial case. The officer in charge will act as "shower," restricted to pointing out matters and not offering opinions unless a jury question is put and agreed upon by counsel (at [26]).

Issue 3: Smile Concepts telephone call

The court admitted evidence of Mr Tadrosse's call to the Smile Concepts cosmetic dentist on the afternoon of 28 April 2020, the day of the alleged offending (at [51]). During that call, Mr Tadrosse enquired about dental implants costing at least $16,000 per arch without apparent hesitation, at a time when he was otherwise in poor financial circumstances. The court found this evidence relevant under s 55 of the Evidence Act, as it was capable of rationally affecting the assessment of the probability that Mr Tadrosse anticipated receiving a windfall in the near future (at [48]). Competing inferences were set aside for the purposes of the s 137 analysis, consistent with established authority (at [49]). Any danger of unfair prejudice was found curable by jury directions (at [50]).

Issue 4: Coronavirus Helpline calls

The court admitted evidence of Mr Tadrosse's calls to the National Coronavirus Helpline at approximately 4:44am and 5:03am on 29 April 2020, as evidence capable of establishing the creation of a false alibi and therefore consciousness of guilt (at [83]). Mr Tadrosse told the Helpline operator that he had "just been home" and had walked his dog, assertions said by the Crown to be inconsistent with his known movements that night, including taking a taxi to Cherrybrook and returning to his Potts Point residence at around 3:06am (at [69]). The court found the evidence had probative value at its highest, including the fact that Mr Tadrosse provided all his personal details on the Helpline a second time, which was capable of being characterised as an attempt to confirm the alibi (at [74]-[75]). The court rejected the submission that the Helpline calls could not distinguish consciousness of guilt for murder as opposed to some lesser offence, holding that the direction to be given to the jury would require them to be satisfied the lies related to conduct constituting the charged offence (at [79]-[81]). Any unfair prejudice was found curable by the extensive lies direction derived from Edwards v The Queen (1993) 178 CLR 193 (at [82]).

Orders Made

  • Mrs Shahidy Saliba is to give evidence by audio-visual link
  • A view is to be held on a date to be advised
  • The statements by Mr Tadrosse to the receptionist at Smile Concepts on 28 April 2020 are admissible
  • The statements by Mr Tadrosse to the Coronavirus Helpline on 29 April 2020 are admissible

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), the probative value of evidence is assessed at its highest, and competing inferences are set aside for that purpose: the court here applied that principle to both the Smile Concepts and Helpline call evidence (at [49], [74]).

  • Evidence of a lie told by an accused can be admitted as consciousness of guilt even where the charged offences include multiple counts, provided the direction to the jury specifies that the lie must relate to conduct constituting the charged offence rather than merely some lesser or incidental wrongdoing (at [79]-[81]).

  • A lie that is not volunteered spontaneously but given in response to a direct question can still, assessed at its highest, be capable of being characterised as the deliberate creation of a false alibi (at [76]).

  • Apparent unfair prejudice from both categories of telephone evidence was found remediable by appropriate jury directions, including the standard lies direction derived from Edwards v The Queen (1993) 178 CLR 193, rather than by exclusion under s 137 (at [50], [82]).

  • Leave to give evidence by audio-visual link under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) is appropriate where a witness is medically confirmed as essentially housebound, provided the necessary facilities exist, the arrangement is not unfair to any party, and the witness will actually give the evidence (at [16]-[17]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 98
- Evidence Act 1995 (NSW), ss 53, 55, 137
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B

Cases
- Cavanagh v R; McIvor v R; O’Keefe v R [2023] NSWCCA 164
- Edwards v R [2022] NSWCCA 22
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Burton [2013] NSWCCA 335; 237 A Crim R 238
- R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
- R v SJRC [2007] NSWCCA 142
- R v Stephen; R v Tadrosse (No 2) [2025] NSWSC 284
- R v Stephen; R v Tadrosse (No 4) [2025] NSWSC 824
- R v Tortell (No 5) [2019] NSWSC 1665
- RJ v R [2025] NSWCCA 68
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40