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Supreme Court 22 April 2026

R v Raad, Tuli and Latham Aznan (No 8)

[2026] NSWSC 397

Homicide
CRIMINAL LAW ADMISSIBILITY OF EVIDENCE CONSPIRATOR’S RULE “SOMEONE’S GOING TO GET HURT” REASONABLE EVIDENCE OF PRE CONCERT

Citation: [2026] NSWSC 397
Court: Supreme Court of New South Wales
Date: 22 April 2026
Judge(s): Hamill J

Background

Three co-accused are on trial for the murder of Anthony Nugent, who was shot at close range at his flat in Hamilton South on the night of 6 September 2022. The prosecution alleges the first accused was the principal shooter, while the other two are alleged to be liable through their participation in a joint criminal enterprise to kill or inflict grievous bodily harm. An alternative "extended" joint criminal enterprise case was also advanced.

The killing followed a botched gun deal the previous evening in which the purchaser (a prosecution witness) paid $22,000 for what turned out to be a fake pistol (a gel blaster). The prosecution case is that the accused spent the following day trying to locate the deceased and another man involved in the deal, motivated by a desire to extract retribution or the return of money through intimidation or force. Each accused contended they were merely looking for those individuals to talk and resolve the dispute.

The prosecution sought to adduce evidence from a witness ("Witness J") about a phone call she received from an unidentified male caller who said "there's two carloads of blokes waiting on the side of the road" and "someone's going to get hurt." The prosecution alleged the caller was the first accused. All three accused objected to the admission of this evidence.

  • Whether it was reasonably open to find that the first accused was the caller who made the threatening phone call to Witness J.
  • Whether the phone call was made before or after the shooting, and therefore whether it could be characterised as made "in furtherance of" a common purpose.
  • Whether the evidence was admissible as an "admission" under s 87 of the Evidence Act 1995 (NSW), and if so, whether s 88's requirement that a "particular person" be identified as making the admission was satisfied.
  • Whether the co-conspirators' rule (as reflected in s 66A of the Evidence Act) rendered the evidence admissible against all three accused, not just the alleged caller.
  • Whether the probative value of the evidence was outweighed by the danger of unfair prejudice under ss 135, 136, or 137 of the Evidence Act.
  • Whether, on an alternative basis, the call could be admitted as having been made by another (unidentified) person in furtherance of a common purpose, and whether fairness to the accused precluded this alternative basis given the matter was not put to earlier prosecution witnesses.

Decision

Hamill J engaged in a detailed analysis of the confusing and inconsistent evidence surrounding the phone call. A central factual dispute was whether the call occurred before or after the shooting. The prosecution argued it was made before the shooting and demonstrated the caller's (and by extension the enterprise's) violent intentions toward the deceased or those associated with the gun deal. The defence argued the timing and identity of the caller were too uncertain for the evidence to meet the threshold for admissibility.

On the question of the caller's identity, the court considered circumstantial evidence including voice identification (or lack thereof), the phone records, and the surrounding context of communications. Hamill J applied the "reasonably open to find" standard used in ss 87 and 88 of the Evidence Act, noting it represents a relatively low threshold of admissibility. His Honour concluded that it was reasonably open for the jury to find the first accused was the caller, and that the call was made before the shooting.

The court also considered the interaction between ss 87 and 88 of the Evidence Act. Section 87 allows a representation made by a person with authority to act on behalf of another to be treated as an admission by that other person, while s 88 requires that the "particular person" who made the admission be identified. The court considered whether the prosecution's submission that the call was made by the first accused satisfied this requirement, and whether the evidence was capable of supporting that submission.

Hamill J ultimately ruled the evidence admissible against all three accused, but subject to limitations and directions. The court acknowledged the risk of unfair prejudice but determined that appropriate directions to the jury, including a warning under s 165(1)(a) of the Evidence Act, could adequately address that risk. The alternative basis for admission (that the call was made by an unidentified person in furtherance of a common purpose) raised fairness concerns because the matter had not been put to earlier prosecution witnesses. The court noted this but nonetheless admitted the evidence, with appropriate limitations.

Orders Made

  • The contested portion of Witness J's evidence regarding the phone call was admitted against all three accused.
  • The admission was subject to limitation and direction to the jury regarding the use that could be made of the evidence.
  • The court indicated appropriate warnings and directions would be given, including under s 165(1)(a) of the Evidence Act.

Key Takeaways

  • The "reasonably open to find" threshold for admissibility under ss 87 and 88 of the Evidence Act is a relatively low bar, distinct from the ultimate question of whether the jury is satisfied of a fact beyond reasonable doubt.
  • Under the co-conspirators' rule (reflected in s 66A of the Evidence Act and the principles in Ahern v The Queen), a statement by one participant in a joint criminal enterprise may be admissible against all participants, provided there is reasonable evidence of a pre-existing common purpose and that the statement was made in furtherance of that purpose.
  • The Supreme Court held that the requirement in s 88 for a "particular person" to be identified as making an admission can be satisfied where the prosecution advances a case identifying a specific accused as the maker of the statement, even where identity is contested and must be resolved through circumstantial reasoning.
  • Fairness to the accused was a relevant consideration where an alternative basis for admissibility (that an unidentified person made the call in furtherance of a common purpose) had not been put to earlier prosecution witnesses during cross-examination.
  • Evidence carrying a risk of unfair prejudice in a joint trial may still be admitted where appropriate limitations and jury directions can mitigate that risk, rather than requiring exclusion under ss 135, 136, or 137 of the Evidence Act.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 38, 56, 59, 66A, 81, 83, 87, 88, 135, 136, 137, 165, 165(1)(a)

Cases:
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
- Audish v R [2024] NSWCCA 196
- Higgins v R [2020] NSWCCA 149
- Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
- Macdonald, Ian v R; Edward Obeid v R; Moses Obeid v R (2023) 112 NSWLR 402; [2023] NSWCCA 250
- R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127
- R v Raad, Tuli and Latham Aznan (No 3) [2026] NSWSC 285
- R v Raad, Tuli and Latham Aznan (No 7) [2026] NSWSC 366
- R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345
- Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22