Citation: [2026] NSWSC 328
Court: Supreme Court of New South Wales
Date: 8 April 2026
Judge(s): Hamill J
Background
Three men stand jointly charged with the murder of a person at Hamilton South on 6 September 2022. The prosecution alleges the motive for the killing arose when the deceased defrauded a person (referred to as Witness A) by selling him a gel blaster disguised as a pistol for around $20,000, when the item was worth less than $2,000. The three accused are said to have each played a role in the supply of the gel blaster.
In the early hours of the day of the shooting, one of the accused (Mr Latham) sent a series of messages to a woman (Witness J) who had helped broker the gun sale. Five of those messages remained in dispute. Mr Latham's counsel pressed for the messages to be admitted in his case, arguing they showed his state of mind and undermined the prosecution's joint criminal enterprise theory. Counsel for the co-accused, Mr Raad and Mr Tuli, objected on the basis that the messages were inadmissible hearsay and unfairly prejudicial against their clients.
The dispute required the Court to determine whether Mr Latham's messages to Witness J could be treated as admissions by the co-accused under section 87 of the Evidence Act 1995 (NSW), and whether the prejudicial effect of the messages warranted their exclusion from the co-accused's cases or from the trial altogether.
Legal Issues
- Whether messages sent by one accused (Mr Latham) to a third party were admissible against the co-accused (Mr Raad and Mr Tuli) as admissions made in furtherance of a common purpose under s 87 of the Evidence Act 1995 (NSW).
- Whether the "common purpose" relied upon by the prosecution for the purposes of s 87 needed to be the same common purpose as the joint criminal enterprise alleged in the charge (to kill or seriously injure the deceased), or whether a broader or extraneous common purpose could suffice.
- Whether the messages constituted inadmissible third-hand hearsay or opinion under s 66A of the Evidence Act.
- Whether the prejudicial effect of the messages on the co-accused substantially outweighed their probative value, requiring exclusion under s 137 of the Evidence Act.
- Whether editing or redacting portions of the messages could adequately reduce prejudice to the co-accused, while preserving the evidence in Mr Latham's case.
- How to balance the competing interests of co-accused who took diametrically opposed positions on the admissibility of the same evidence.
Decision
Hamill J ruled that the five disputed messages were admissible in Mr Latham's case but not admissible in the cases of Mr Raad or Mr Tuli. As against Mr Latham, the messages constituted direct evidence of his state of mind and intentions, and his counsel actively pressed for their admission. No party disputed their admissibility in his case.
On the s 87 common purpose question, Hamill J considered the authority of R v Dolding, in which Simpson J held that the relevant common purpose for the purposes of s 87(1)(c) must be the common purpose that forms part of the charged offence. The prosecution argued that Mr Latham's messages were representations made in furtherance of the common purpose shared with Mr Raad and Mr Tuli. Counsel for the co-accused submitted that any common purpose reflected in the messages (such as recovering money or resolving the fallout from the fraudulent gun sale) was "extraneous" to the alleged joint criminal enterprise to kill or seriously injure the deceased. Hamill J found that the messages were not capable of being characterised as representations made in furtherance of the common purpose to commit murder. Even taking a broader approach to the concept of common purpose, the Court found the evidence was inadmissible against the co-accused because its prejudicial effect substantially outweighed its probative value.
Key aspects of the prejudice identified by the Court included language in the messages capable of raising inferences that the co-accused were persons of violent character. Phrases such as "these boys just not sort that take this lightly," that they are "next level," and a threat to "fix her" if a problem was not resolved, implied the persons spoken about (whom the jury would likely conclude included Mr Raad or Mr Tuli, or both) were violent individuals. The Court also noted the difficulty with one message (message #33), which included a screenshot of a message from another phone. The prosecution suggested Mr Raad authored that message, but no direct evidence linked the message to Mr Raad's device. Hamill J appeared to accept the submission that attributing authorship to Mr Raad on the available evidence would involve speculation rather than rational circumstantial reasoning.
Hamill J concluded that judicial directions alone could not cure the prejudice to the co-accused, relying on authorities emphasising the limits of jury directions in joint trials. The Court instead ordered targeted redactions to remove the most prejudicial material before the messages were placed before the jury in Mr Latham's case, with the communications table amended to make clear the messages were admissible only in Mr Latham's case.
Orders Made
- Eight messages previously tendered by the prosecution (messages 49, 50, 51, 52, 53, 74, 78, and 79) were withdrawn by the prosecutor. The communications table was to be amended to retain only the fact, timing, and parties to those messages, with the substance deleted.
- Messages 9, 22, 24, 31, and 33 were ruled admissible in Mr Latham's case only, and not admissible in the cases of Mr Raad or Mr Tuli.
- Specific redactions were ordered:
- Message #9: No redactions.
- Message #22: No redactions.
- Message #24: Delete "these boys just no sort that take this lightly."
- Message #31: Delete "are next level."
- Message #33: Delete "If she can't fix it I'll fix her when I get there straight out."
- The communications table was to be amended to make clear that those items were admissible only in Mr Latham's case.
Key Takeaways
- Messages sent by one co-accused to a third party were held inadmissible against the other co-accused under s 87(1)(c) of the Evidence Act, as the messages could not properly be characterised as representations made in furtherance of the common purpose to commit the charged offence.
- Following the authority of R v Dolding, the Supreme Court confirmed that a "common purpose" extraneous to the joint criminal enterprise alleged in the charge is insufficient to engage s 87(1)(c) to render one co-accused's statements admissible against another.
- Even if a broader approach to the concept of common purpose were adopted, the prejudicial effect of the messages on the co-accused substantially outweighed their probative value, warranting exclusion under s 137 of the Evidence Act.
- Judicial directions to the jury were found insufficient to cure the prejudice arising from language in the messages that implied the co-accused were persons of violent character, with targeted redactions identified as necessary instead.
- In joint trials where co-accused take diametrically opposed positions on the admissibility of the same evidence, the Court must balance each accused's right to a fair trial while preserving the evidentiary rights of the accused who seeks admission of the material.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 66A, 87, 137
Cases:
- Allen v R [2020] NSWCCA 173
- Higgins v R [2020] NSWCCA 149
- McNamara v The King (2023) 280 CLR 201; [2023] HCA 36
- R v Al Batat & Ors (No 9) [2020] NSWSC 1101
- R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127
- R v Hazairin Iskandar; R v Andrew Iskandar & R v Nita Iskandar [2011] NSWSC 1192
- Regina v Pham [2004] NSWCCA 190
- R v Watt [2000] NSWCCA 37
- Sokolowskyj v Regina [2014] NSWC