Citation: [2026] NSWSC 284
Court: Supreme Court of New South Wales
Date: 30 March 2026
Judge(s): Hamill J
Background
Three men stood charged with the shooting murder of a man at Hamilton South on 6 September 2022. The prosecution alleged that the motive was a fraudulent firearm transaction the day before the killing, in which the deceased sold a gel blaster misrepresented as a real pistol for approximately $20,000.
One of the accused, Mr Tuli, objected to the admission of four intercepted telephone calls he had with his co-accused, Mr Latham. The calls were recorded between December 2022 and April 2023 while Mr Tuli was in custody on unrelated matters. Mr Tuli and both co-accused had already pleaded guilty to a firearm supply charge and an alternative manslaughter charge, but the murder charge remained contested.
The objections were argued on 24 March 2026 and rulings were delivered on 30 March 2026. Counsel for Mr Latham took a neutral position on the calls' admissibility.
Legal Issues
- Whether the four intercepted telephone calls between two co-accused were relevant to the murder charge within the meaning of s 55 of the Evidence Act 1995 (NSW).
- Whether the probative value of any or all of the calls was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW).
- Whether existing guilty pleas to related charges (firearm supply and manslaughter) deprived the calls of relevance or substantially diminished their probative value.
- Whether evidence revealing (or risking the inference of) the accused's custodial status required exclusion or limitation.
Decision
Call of 9 December 2022 (concerning Witness D and the firearm transaction): Admitted. Hamill J held this call was relevant because it provided details of the fraudulent gun transaction that formed the essential background to the murder. The conversation disclosed Mr Tuli and Mr Latham's belief that Witness D was involved, financial details of the transaction, and evidence that the accused were "put in shit" with the purchaser. The court rejected the submission that guilty pleas to the firearm supply charge stripped the conversation of relevance, holding that the prosecution was entitled to prove its case with the available evidence. No unfair prejudice was identified, provided the prosecution edited the recording to remove any indication the call was made from a correctional centre.
Calls of 13 January 2023 and 21 March 2023 (concerning the whereabouts of Witness B): Excluded. Both calls involved Mr Tuli expressing concern that Witness B, who allegedly played a role in obtaining and storing the shotgun used in the murder, had "gone missing in action." Hamill J accepted the evidence was relevant given Witness B's alleged involvement. However, the probative value was not great. The court found a real risk of unfair prejudice because Mr Tuli and Witness B may have had other "nefarious dealings," placing Mr Tuli in an invidious position if trying to explain the calls. There was also a risk the jury would overvalue two murder accused expressing concern about a witness's disappearance. The evidence was excluded under s 137.
Call of 30 April 2023 (discussion of the police investigation and "Pig Latin" exchange): The judgment text as available dealt with this fourth call, which included discussion between Mr Tuli and Mr Latham about the status of the police investigation and a Pig Latin reference to "ootingshay" (shooting), along with a comical correction. The court assessed this call against the same framework of probative value and unfair prejudice. (The truncated text does not disclose the full ruling on this call, so the precise outcome cannot be confirmed from the available extract.)
Orders Made
- The intercepted telephone call of 9 December 2022 was ruled admissible, subject to editing to remove any reference to the correctional centre setting.
- The intercepted telephone calls of 13 January 2023 and 21 March 2023 were excluded pursuant to s 137 of the Evidence Act 1995 (NSW).
- The ruling on the 30 April 2023 call was addressed but the full outcome is not available from the truncated judgment.
Key Takeaways
- Guilty pleas to related charges do not prevent the prosecution from adducing evidence relevant to a remaining charge; the Supreme Court held that the pleas to firearm supply and manslaughter did not strip the intercepted conversation about the fraudulent gun transaction of its relevance to the contested murder charge.
- Where intercepted calls between co-accused could invite jury speculation about uncharged criminal conduct or other nefarious associations, the danger of unfair prejudice may outweigh probative value, warranting exclusion under s 137 of the Evidence Act 1995 (NSW).
- The Supreme Court found that the risk of a jury learning an accused was in custody at the time of a call could itself constitute unfair prejudice, but that this risk could be managed by editing recordings to remove correctional centre warnings and other custodial indicators.
- A call-by-call assessment was central to the ruling: two calls between the same parties on related topics were excluded while a third was admitted, reflecting the highly fact-specific nature of the s 137 balancing exercise.
- In resolving the objections, Hamill J applied the principles set out in R v Diallo & Ors (No 4) [2024] NSWSC 882 for assessing relevance, probative value, and unfair prejudice under ss 135 to 137.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 55, 135, 136, 137
Cases:
- R v Diallo & Ors (No 4) [2024] NSWSC 882
- R v Raad, Tuli and Latham Aznan [2026] NSWSC 283
- R v Raad, Tuli and Latham Aznan (No 3) [2026] NSWSC 285