R v Chamma; R v Hicks

Brief facts

1. In order to consider the arguments in favour of the exclusion of the statements of Ms Kerrigan and the text messages, it is necessary to place the contested evidence in the context of the Crown case as a whole. The following factual summary is largely taken from the Crown Case Statement.

Overview

1. At 10:06pm on Sunday 15 November 2020, a red Honda Accord motor car bearing registration plates ending in 54Q ("the red Honda car") drove slowly along Wentworth Avenue in Toongabbie, past the home of Warwick Hunter ("the deceased") and onto Budgeree Road. Driving the car was the Accused Chamma. The Accused Hicks and Mr Jonathon Salamie were passengers within the car.
2. The red Honda car completed a U-turn in Budgeree Road before coming to a stop on Wentworth Avenue, directly opposite the deceased's home. The car's occupants got out. The Crown alleges that by that stage, those three men had reached an understanding or arrangement amounting to an agreement between them that they would enter the deceased's home and rob, or assault with intent to rob, the deceased of money, prohibited drugs or other valuable property.
3. The Accused Chamma, the Accused Hicks and Mr Salamie forced entry into the deceased's dwelling house through its front door. The Crown alleges that the Accused Hicks or the Accused Chamma or both of them were armed with a bladed weapon. On seeing the three men enter his home, the deceased attempted to flee. He was punched by one of the men and fell to the floor. As he attempted to get up from the floor the deceased was stabbed. He continued to try to escape and was stabbed several times. An unknown quantity of money and/or valuables belonging to the deceased were stolen.
4. Bleeding from the stab wounds, the deceased walked from his home and yelled for help. A neighbour called the police, but the deceased died from his stab wounds on the ground where he had collapsed shortly after the arrival of the police and ambulance.

Background

1. In November 2020, the Accused Chamma was living between Gardner Street in Rooty Hill and Jersey Road in South Wentworthville. He was using a mobile telephone service ending in 301, subscribed in the name of "Vishaal LAL" of a Belmore address. On 15 November 2020, the Accused Hicks was using a mobile service ending in 636, subscribed in the name of his mother, Patricia Smith. Mr Salamie was using a mobile service ending in 046, subscribed in his name.
2. The deceased was 50 years old at the time of his death. He lived alone at Wentworth Avenue, Toongabbie. The premises consisted of a three-bedroom detached brick house situated on the corner of Wentworth Avenue and Budgeree Road, Toongabbie. The front entrance consisted of a lockable metal security door and a lockable wooden door. There were no Closed-Circuit Television (CCTV) cameras attached to that house. Neighbouring premises on Wentworth Avenue had CCTV cameras, one of which captured part of the footpath and roadway at the front of the deceased's home.
3. On Sunday 15 November 2020, the deceased spent part of the day with his wife, Ms Premila Devi, shopping, eating and visiting friends. Ms Devi did not reside with the deceased, but they regularly socialised and spent time together.
4. At about 3:05pm, Ms Devi drove her vehicle (a silver Subaru Forester) to the deceased's home. Ms Devi went inside for a short period before she and the deceased left in her vehicle. Over the next few hours, Ms Devi and the deceased did some shopping at Prospect, checked a property at Blacktown and went to a friend's house at Pendle Hill.
5. At about 3:30pm, Mr Salamie attended Toongabbie Hotel by himself. He consumed several beers and played the poker machines. Mr Salamie was wearing a black t-shirt with a gold motif on the front, green three-quarter length pants, black shoes, a black Adidas shoulder bag, black sunglasses, and he was carrying a black baseball cap.
6. At 4:27pm, the Accused Chamma was in the area of Doonside.
7. At 4:40pm, Mr Salamie left the Toongabbie Hotel and caught a train to Pendle Hill Railway Station. He went to the Pendle Hill Hotel, drank a few beers, and played the poker machines.
8. At about 4:50pm, the Accused Chamma drove the red Honda car to the Doonside Hotel at Graham Street, Doonside. The Accused Chamma was the only occupant of the vehicle, which was registered to Ms Jasmine Taylor of Doonside.
9. Ms Taylor asserts that the red Honda car had been borrowed for a three-day period in November 2020 by the Accused Chamma, a friend of her brother's, and that he was the last person who had possession of her car.
10. The Accused Chamma entered the hotel and went to the poker machine room. He met with a person ("Witness G"). The Accused Chamma appeared on CCTV footage from within the hotel wearing a white collared Gant branded t-shirt, dark Adidas shorts with the 3-stripe design on either side, red shoes, a white Champion branded baseball cap and he was carrying a black single strap shoulder bag and mobile phone.
11. At about 5:30pm, the Accused Chamma and Witness G left the hotel. The Accused Chamma drove away in the red Honda car with Witness G seated in the front passenger seat. Between about 5:30pm and 8:00pm, the Accused Chamma accompanied by Witness G drove in Doonside, Blacktown and Toongabbie.
12. At 5:42pm, Ms Devi and the deceased returned to the deceased's home. The deceased could not locate his house keys and so was not able to enter his home. Ms Devi left and drove to a friend's house nearby for a visit. When Ms Devi arrived at her friend's house, she located the deceased's house key in her car.
13. At 5:51pm, Mr Salamie left the Pendle Hill Hotel and walked along Wentworth Avenue towards the deceased's home. He was captured on CCTV footage walking along Wentworth Avenue outside the address of a house near the deceased's home in Wentworth Avenue, Toongabbie.
14. At 6:06pm, Mr Salamie received a Service Provider Usage Alert Short Messaging Service (SMS) on his mobile service ending in 046, which connected with a Cell Tower at Pendle Hill.
15. At 6:12pm, Ms Devi and her friend returned to the deceased's home. Ms Devi saw the deceased in the front garden of the house and gave him his keys. Ms Devi saw that there was a male with the deceased who she did not know. The deceased told Ms Devi that this person was a cousin of "Mohammed". Ms Devi described the unknown male as "a Muslim guy with a big black beard with a fair complexion, not too dark, strong muscly build." She said he was wearing a white cap, a black t-shirt and black pants. It is alleged on the Crown case that the male was Mr Salamie. Ms Devi and her friend left the location. The deceased and Mr Salamie were at the location when she left.
16. Ms Devi identified the deceased as having in his possession on 15 November 2020 two bags; one black bag and a small red bag, and that the black bag contained an amount of cash from which the deceased removed one bundle on the afternoon of 15 November 2020, before the pair returned to the deceased's home.
17. As stated above, between about 5:30pm and 8:00pm, the Accused Chamma accompanied by Witness G, drove in Doonside, Blacktown and Toongabbie. At some time while driving, the Accused Chamma asked Witness G if he could collect a mate from a place at Toongabbie. He said that his mate had told him he was "with some guy who is cashed up", and that he wanted to check it out.
18. At 7:51pm, Mr Salamie made a phone call from his mobile service ending in 046 to the deceased's mobile service ending in 068. The duration for this call was zero seconds and was not answered. Mr Salamie's mobile service connected with a Cell Tower at Pendle Hill.

First visit by the Accused Chamma to the vicinity of the deceased's home ("first visit"):

1. At 7:54pm, the red Honda car travelled on Wentworth Avenue, Toongabbie towards the deceased's home. The vehicle stopped on the roadway and parked about 30 metres from the deceased's house.
2. Mr Salamie walked from the front area of the deceased's home towards the red Honda car, walking around to the driver's side door. After a short period, the Accused Chamma got out of the front driver's side of the car, and Witness G got out of the front passenger side. There is CCTV footage relating to this visit.
3. A brief conversation occurred, and the Accused Chamma, Mr Salamie and Witness G walked towards the front of the deceased's home.
4. At 8:18pm, the Accused Chamma, Mr Salamie and Witness G walked from the deceased's home and got into the red Honda car. The Accused Chamma got into the front driver's side, Witness G into the front passenger seat and Mr Salamie entered the rear passenger side seat.
5. The red Honda car made a U-turn on Wentworth Avenue and drove away in the direction of Toongabbie Railway Station.
6. On leaving the house of the deceased, Mr Salamie told the Accused Chamma and Witness G that, "The guy is cashed up. I saw a bundle of cash in his pocket and he must have money; did you see the chains he had? I was just walking past the place and the guy was acting all weird and invited me inside." The Accused Chamma said "Well we're coming back here then. That's our next job." Witness G understood this to mean that the Accused Chamma wanted to go back to the deceased's house and rob him of money and any other valuables. Witness G directed the Accused Chamma to drop him to his house.
7. As the group were driving back to Witness G's house, the Accused Chamma told Witness G to, "Call Hicksy and tell him I will pick him up", stating that he was unable to do it as he was driving, and his phone was flat. Witness G phoned the Accused Hicks as instructed and said to the Accused Hicks "Samir said he is going to come pick you up." The Accused Hicks said to him "They are going to go see this guy", and the Accused Chamma interrupted the phone conversation to tell Witness G "Don't say nothing more, just tell him I'm going to come pick him up." Witness G did as he was told to do and was then dropped to a street near his house. When he left the red Honda car, Mr Salamie got out of the back seat, and into the front passenger seat of the car.
8. At 8:36pm and 8:50pm, Mr Salamie's mobile service ending in 046 connected with a telecommunications tower at Bert Saunders Reserve, Doonside. McCulloch Street, Blacktown is on the border of Doonside and a short distance from Bert Saunders Reserve.
9. At 8:40pm, the red Honda car drove along McCulloch Street, Blacktown before turning into London Street, where it parked. Witness G exited the vehicle. The vehicle left the street shortly afterwards. At 8:54pm, the red Honda car travelled through Rooty Hill and entered Gardner Street.
10. At 9:04pm, the Call Charge Records for the Accused Hicks' mobile service ending in 636 indicated that he made a voice call to an associate's mobile service ending in 850. At this time the mobile service of the accused Hicks was connected to a Cell Tower at Seven Hills. Shortly after this, the Accused Chamma and Mr Salamie arrived at Dale Street, Seven Hills in the red Honda car. They picked up the Accused Hicks and drove off in the red Honda car towards Toongabbie.

Second visit by the Accused Chamma to the vicinity of the deceased's home ("second visit"):

1. At 10:04pm on Sunday 15 November 2020, the red Honda car travelled along Station Road, Seven Hills towards Toongabbie, and then on Wentworth Avenue, Toongabbie, towards the deceased's home. The Accused Chamma is alleged to have been driving the vehicle at this time and Mr Salamie and the Accused Hicks are alleged to have been in the vehicle as passengers.
2. At 10:06pm, the red Honda car drove slowly past the deceased's home, completing a U-turn in Budgeree Road before coming to a stop on Wentworth Avenue directly opposite the deceased's home. There is CCTV footage relating to this visit.

Murder of Warwick Hunter

1. At 10:11pm, the Accused Chamma, Mr Salamie and the Accused Hicks exited the red Honda car and walked towards the front of the deceased's home. The Accused Chamma and/or the Accused Hicks were armed with a knife at this time. One of those knives was contained within a homemade sheath constructed from two cardboard toilet paper inner rolls stuck together to hold the knife.
2. At this time, the deceased was home alone listening to loud music, as he often would. The deceased was wearing no shirt, red shorts and yellow-coloured shoes.
3. The Accused Chamma forced entry to the deceased's home through the front door and all three men entered with the intention to rob the deceased of drugs and money.
4. The deceased saw the three men in his home and attempted to escape from them. Of the men, the Crown alleges that probably the Accused Hicks ran towards the deceased and punched him, causing him to fall to the floor. The deceased attempted to get up off the floor and was stabbed. The deceased continued to try to escape and was stabbed several more times. The Accused Chamma, Mr Salamie and the Accused Hicks stole an amount of money and/or other valuable property belonging to the deceased and fled the premises.
5. At 10:14pm, the Accused Chamma, Mr Salamie and the Accused Hicks ran from the front of the deceased's home towards the red Honda car and all three men entered it. The red Honda car, driven by the Accused Chamma, sped off towards Toongabbie Railway Station without its headlights turned on.
6. At 11:07pm, the red Honda car was driven on McCulloch Street, Blacktown. The Accused Chamma, the Accused Hicks and Mr Salamie were within the car at that time. At 11:28pm, the red Honda car was at the Caltex Service Station, Vardys Road, Kings Park.
7. At around 2:00am on Monday 16 November 2020, the red Honda car drove along London Street, Blacktown and parked near the corner of McCulloch Street. The Accused Hicks got out of the front passenger seat of the vehicle and ran towards McCulloch Street. A short time later, the Accused Hicks ran back to the vehicle and the Honda drove away.

Arrival of police and paramedics

1. Sometime after 10:00pm, a person was heard yelling for help at the front of a unit at Budgeree Road. The unit's occupant, upon hearing the yelling, went outside and saw the deceased lying on the ground. A significant amount of blood could be seen on the deceased's chest, torso and on the ground around the deceased. The deceased was still breathing, although his breathing was shallow. The witness' stepson came outside and was instructed by the witness to call an ambulance.
2. At about 10:35pm, police arrived at Budgeree Road, Toongabbie to find the deceased lying unconscious on the footpath with what appeared to be multiple stab wounds to his body. The deceased was wearing shorts but no shirt. The paramedics were in attendance and preparing to perform CPR on the deceased. Police observed a blood trail leading from where the deceased lay, leading south along Budgeree Road.
3. Police and paramedics initiated the treatment of the deceased, however on commencing CPR a large volume of blood began to issue from the back of the deceased, and CPR was ceased. The wounds were covered, and CPR recommenced by both police and paramedics. After a couple of minutes, the deceased was pronounced dead by paramedics, treatment ceased and the deceased remained at the scene until about 2:05am, when his body was transported to the morgue.
4. A crime scene was established, and investigators established a Strike Force to investigate the murder of the deceased.

Cause of death

1. On 17 November 2020, pathologist Dr Elsie Burger conducted an autopsy on the deceased and found that the cause of death was stab wounds to the chest that penetrated the deceased's right lung. Dr Burger also opined that the post-mortem toxicology findings included the presence of methylamphetamine in a "potentially toxic range".

Crime scene examination

1. On 15 November 2020, police observed a trail of blood from the position of the deceased outside Budgeree Road, leading west towards the intersection of Wentworth Avenue, Toongabbie. The blood trail was observed to lead to the rear entrance of the deceased's home.
2. On reaching the deceased's home, police officers gathered in the front yard of the premises and heard an audible bang from within. The property was secured as a crime scene. The front door of the property was observed to be slightly ajar, and the lights on within.
3. At around 11:00pm, specialist police entered the house. No person was located within the house at that time. At about 6:30pm on Monday 16 November 2020, an investigative search was conducted of the premises of the deceased's home under a crime scene warrant. The search was recorded electronically, and exhibits seized.
4. The frame and lock of the front security door was damaged. The striker plate was located on the front path. Blood droplets and blood smears were located in various areas within the deceased's home, in particular within the kitchen/dining area. Subsequent examinations indicated this was the deceased's blood.
5. A cardboard object was located underneath the dining table inside the deceased's home. It was a homemade sheath constructed to hold a knife. The sheath consisted of two cardboard toilet roll inners taped together and folded to hold a knife. The item was seized for examination.
6. A drop of the deceased's blood was located on the cardboard sheath along with several fingerprints. Subsequent testing revealed the fingerprints belonged to the Accused Chamma. Further examination of the item located DNA matching the Accused Chamma and the Accused Hicks on the cardboard rolls.

Post-offence conduct alleged by the Crown to be evidence from which a consciousness of guilt can be inferred

The Accused Hicks

1. Witness G is anticipated to state that sometime between 10:00pm and 11:00pm on 15 November 2020, there was a knock at the front door of his home. He opened the door to see the Accused Hicks, the Accused Chamma and Mr Salamie. The Accused Hicks said he wanted drugs. Witness G thought that the Accused Chamma and Mr Salamie looked like they were in shock. The Accused Chamma said "Johnny [the Accused Hicks] fucked up, he stabbed a bloke".
2. In response, the Accused Hicks said, "I stabbed him in the neck and I stabbed him through the side and it came out his front".
3. A few weeks later, the Accused Hicks returned alone to the home of Witness G. Whilst standing in the kitchen, the Accused Hicks said to Witness G: "When we went there, the doors were locked. [The Accused Chamma] grabbed the front screen door and ripped it off. When we went in, [the deceased] was in the kitchen. He tried to run into his bedroom, so I punched him twice. He went to get up again, so I stabbed him in the neck. Blood was spurting everywhere. [The Accused Chamma] got blood all over him. I put my foot on the guy and he tried to get up again, so I stabbed him in the torso and the leg."
4. The Accused Hicks said they had gone back to "Sharon's" after the incident and "showered and got cleaned up."
5. In a statement provided by Ms Kerrigan, she states that: 1. On 19 November 2020, there was a telephone conversation between the Accused Hicks and Ms Kerrigan during which the Accused Hicks asked Ms Kerrigan: "did you hear about what happened the other night in Toongabbie?" He added that the police were after him and that he would tell her about it later. 2. About one week later, the Accused Hicks attended Ms Kerrigan's house after making an arrangement to meet. He entered and closed all the blinds and locked all the doors and windows. He asked Ms Kerrigan to break his phone and snap his SIM card, which she did. The Accused Hicks stayed about three days with Ms Kerrigan at this time. 3. During that time, a number of conversations occurred between the pair. In one such discussion when Ms Kerrigan asked the Accused Hicks to tell her what happened with "this Toongabbie thing", the Accused Hicks told her: "I was there with my mate at the guy's house; it was over drugs and the guy died and we took off in a car - we got some money." 4. Ms Kerrigan asked about the car they were in and the Accused Hicks said "no one's car, we just got the car, I wasn't driving", and when Ms Kerrigan asked who he was with, the Accused Hicks said "well my mate just sat there when I done everything." 5. The Accused Hicks left Ms Kerrigan's residence after about three days, returning sometime later after an interaction with police over a police pursuit. He had personal belongings with him at the time and Ms Kerrigan had told him not to bring anything with him associated with the Toongabbie murder. 6. On arrival at Ms Kerrigan's house, Mr Hicks had personal belongings, including something in a yellow bag. Ms Kerrigan knew by the shape of the item that the bag contained a knife, and the following conversation occurred: "KERRIGAN: why did you bring that here? HICKS: well I can't leave it at my mum's house KERRIGAN: you can't have it here, you need to get rid of it out of this house, my kids are here HICKS: Wait a couple of days until it rains, and I'll get rid of it. It should wash away." 1. The Accused Hicks then removed the knife from the yellow bag. It was wrapped in a black bandanna. Ms Kerrigan stated "the knife [was] a middle-sized machete with a black handle and silver/chrome blade. It had a serrated edge and it was cleaned." 2. At around 11:20pm around a few days later, it was raining and the following conversation occurred: "HICKS: I'm gunna go get rid of it KERRIGAN: yes, do it HICKS: I know a good drain to put it in, it should just wash away KERRIGAN: Where? HICKS: on Buckwells" 1. Ms Kerrigan saw the Accused Hicks get dressed and put dark clothing on, covering all his tattoos, as well as a hoodie. He took the knife out of the house still wrapped in the bandanna and in the yellow bag. He left the house for a period of approximately 15 minutes. On his return, he still had the yellow bag and bandanna in his possession. He told her "it's gone". 2. Buckwells Drive is a street just near Ms Kerrigan's place. She describes where it is and states she was not sure of any drains but assumes this is where he went to get rid of it. 3. Sometime in early 2021, the Accused Hicks received a phone call from his brother, Michael Anderson, telling him that some car was on the news and to look it up. Ms Kerrigan and the Accused Hicks looked up "Toongabbie murder" on Facebook, and together viewed a video concerning a red car. The Accused Hicks said, "show me again, I want to see if you can see me in the car coz I was crouching down." Ms Kerrigan said that she did not want to hear about it anymore, and the Accused Hicks said, "you can't see me."
6. Further post-offence statements relied upon by the Crown as being capable of justifiably inferring a consciousness of guilt on the part of the Accused Hicks, are the following representations by the Accused Hicks: 1. Using mobile telephone service ending in 706 on 10 and 13 January 2021, captured on Warrant C21279, including his statement on 13 January 2021 (Product number 2501): "Cuz I killed that cunt lad ya mad cunt"; 2. SMS exchanges via mobile phone between Ms Kerrigan and the Accused Hicks on 10 January 2021 and 5 February 2021, captured on Warrant C21279, Product number 552 through to Product number 14125 (further described below); and 3. His efforts to avoid contact with the Homicide Squad of the NSW Police Force, as alluded to by him in the telephone call with Sarah Camilleri on 4 May 2021 from 14:16:20 hours, captured on Warrant C21279, Product number 26333.

Evidence tendered on application for exclusion of evidence

1. On 24 May 2023, a hearing in relation to the application for the exclusion of evidence took place before me. Evidence tendered on the application for exclusion of evidence by the Accused Hicks was: 1. Affidavit of Andrew Scali sworn 17 May 2023 annexing: 1. The Crown Case Statement dated 26 February 2023; 2. Statement of Abbie Rose Joyce Kerrigan dated 5 May 2021; 3. Extract of text messages alleged to be between the Accused Hicks and Ms Kerrigan; and 4. Autopsy Report of Dr Elise Burger dated 13 July 2021.
2. Also tendered on behalf of the Accused Hicks was an updated bundle of text messages to replace the above extract at (1)(c) (above) (marked Exhibit 1).
3. Exhibit 1 consists of the following 27 messages between 10 January and 5 February 2021 relating to (on the Crown case) Ms Kerrigan's repeated concern that the Accused Hicks gets rid of a "big knife" (as described by the Accused Hicks) or "knife" (as described by Ms Kerrigan) from her house, as follows: 1 Hicks to Kerrigan 10 January 2021 Hold up need to hide shit 13:19:19 2 Kerrigan to Hicks 10 January 2021 Thought you got rid off everything 13:19:55 3 Hicks to Kerrigan 10 January 2021 I did except for that big knife 13:20:34 4 Kerrigan to Hicks 5 February 2021 I don't care don't mention [Witness G] it anyone else and killing people or any off that in my house again I'm getting rid off that knife because you won't 16:18:36 5 Hicks to Kerrigan 5 February 2021 Leave they knife 16:19:05 6 Hicks to Kerrigan 5 February 2021 I'll get rid of it 16:19:23 7 Kerrigan to Hicks 5 February 2021 Excuse me it's in my kids home it's going 16:19:29 8 Hicks to Kerrigan 5 February 2021 16:20:15 Yeah but U got my phone found wat U goin' to get that found to 9 Kerrigan to Hicks 5 February 2021 16:20:47 It's in my kids home ffs 10 Hicks to Kerrigan 5 February 2021 16:21:07 Il get rid of it 11 Kerrigan to Hicks 5 February 2021 16:21:27 By tomorrow I want it gone I fucken mean it 12 Hicks to Kerrigan 5 February 2021 16:21:36 U wanna get done with it 13 Hicks to Kerrigan 5 February 2021 16:21:42 Ok 14 Kerrigan to Hicks 5 February 2021 16:22:21 Ok I take it to the park now 15 Hicks to Kerrigan 5 February 2021 16:22:39 No don't 16 Hicks to Kerrigan 5 February 2021 16:22:57 Don't be fukn stupid U want me done 17 Kerrigan to Hicks 5 February 2021 16:23:28 It's going to the park you won't go get rid off it 18 Hicks to Kerrigan 5 February 2021 16:23:40 I will tonite 19 Kerrigan to Hicks 5 February 2021 16:23:54 My kids will end up in docs 20 Hicks to Kerrigan 5 February 2021 16:24:05 I will tonite 21 Hicks to Kerrigan 5 February 2021 16:54:21 Wat U doin 22 Hicks to Kerrigan 5 February 2021 17:17:54 Wat U doin 23 Hicks to Kerrigan 5 February 2021 17:18:21 Babe 24 Kerrigan to Hicks 5 February 2021 17:18:57 If I don't reply it's either I'm looking after my kids or I'm doing something for fucksake 25 Kerrigan to Hicks 5 February 2021 17:19:07 You have to get rid of this knife 26 Hicks to Kerrigan 5 February 2021 17:19:25 I will wen I get bak 27 Kerrigan to Hicks 5 February 2021 17:19:42 I mean it

Notice of the Defence Case

1. The Accused Hicks' case is that he was not present at the botched robbery and was instead spending the evening up until midnight 15 November 2020 with his friends, Alex Roger and Sharon Kelly. An alibi notice to that effect has been served on the Crown.

Relevant legal principles

1. The relevant legal principles were agreed.
2. Section 55 of the Evidence Act creates the basic requirement that evidence is admissible - if it were to be accepted - if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue.
3. Sections 135 and 137 of the Evidence Act require the Court to undertake an assessment as to whether a jury may use the evidence improperly in some unfair way.
4. Section 137 of the Evidence Act deals with the exclusion of prejudicial evidence in criminal proceedings and provides as follows: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
5. In the Dictionary to the Evidence Act the probative value of evidence is defined to mean: the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
6. In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, French CJ, Kiefel, Bell and Keane JJ state at [47]: "[T]he requisite probative value of the evidence is not spelled out in s 137. It requires the 'probative value' of the evidence to be weighed against the danger of unfair prejudice to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue."
7. In considering whether the probative value of the evidence outweighs the danger of unfair prejudice to an accused, the probative value of the evidence is to be assessed at its highest, unless the evidence is so lacking in credibility or reliability that it would not be open to a jury acting rationally and properly directed to accept it: R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [95] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
8. In R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520, Wood CJ at CL, Hulme and Buddin JJ stated the following at [252] concerning the danger of unfair prejudice: "Prejudice argues for exclusion only if there is a real risk of danger of it being unfair […]. This may arise in a variety of ways, a typical example being where it may lead a jury to adopt an illegitimate form of reasoning, or to give the evidence undue weight." (Emphasis in original.)
9. In Webb v R; R v Webb [2012] NSWCCA 216; (2012) 225 A Crim R 550, Johnson J (with whom Macfarlan JA and Beech-Jones J agreed) held at [103] that "it is erroneous to hold that evidence must be 'unambiguous' to withstand rejection under s. 137, noting that it is for the jury to determine what facts should be found: R v SJRC [2007] NSWCCA 142 at [21], [36]-[39], [47]-[49]." (Emphasis in original.)
10. If there is no real risk that the evidence will be used by the jury in the suggested improper way, then there will be no danger of unfair prejudice and therefore no basis for exclusion.
11. In the exercise of determining whether there will be unfair prejudice, the Court must also consider the extent to which the danger associated with admitting the evidence may be reduced by some other action, including directions to the jury.

Submissions on behalf of the Accused Hicks

1. There are three bases for the objection to the admissibility of the contested evidence: 1. The knife referred to in the text messages is not described, although in Ms Kerrigan's statement she refers to a weapon brought to her house as "a middle-sized machete with a black handle and silver/chrome blade." Ms Kerrigan further notes that it "had a serrated edge and it had been cleaned." It is contended that if that description as a "machete" is accurate, then it is inconsistent with the nature of the injuries received by the deceased (described in the autopsy report as "stab wounds to the chest", with one of the wounds measuring 33mm in length, which perforated the middle lobe of the right lung; and the other wound described as 30 mm in length which penetrated the lower lobe of the right lung. It is "therefore unlikely to be the murder weapon", and if that is correct, then the weapon Ms Kerrigan refers to in her statement and text messages is not related to the death of the deceased. That renders that evidence irrelevant and/or unfairly prejudicial. 2. Further indicating that the weapon described in the text messages and statement is different from the weapon responsible for the deceased's death is the temporal disconnect between the killing on 15 November 2020 and the text messages sent on 10 January 2021 and 5 February 2021. 3. Permitting the Crown to lead evidence of the knife is unfairly prejudicial to the applicant because it will cause the jury to reason that (a) it is the murder weapon and (b) the Accused Hicks was involved in the murder in circumstances where the knife appears unconnected.
2. It is submitted that any of these matters (and certainly in combination) would lead the Court to conclude that the admission of this evidence is irrelevant or unfairly prejudicial.
3. It is contended that the wounds described in the autopsy report are consistent with a knife being used not a machete. The Accused Hicks submits "that a machete would injure its victim via slashing injuries, as opposed to a direct incision which enters the body and continues its track to a depth that would penetrate the lungs."
4. It is also contended that Ms Kerrigan's knowledge of the death is also quite vague, stating that "I don't even know if the guy who died got shot or not" - meaning that her concern in the text messages simply centred around the knife being near her children - not its association with any murder.
5. It is further argued that there is no evidence that this is the knife used in the killing of the deceased. Whilst there does not need to be evidence beyond reasonable doubt that it was the murder weapon to be admissible, there needs to be relevance beyond mere speculation.

Submissions for the Crown

1. The Crown submits that Ms Kerrigan describes seeing a knife produced by the Accused Hicks, it would seem around November 2020. It is put that comparison between the knife described and the injuries caused is highly speculative and of no value in the absence of expert evidence.
2. It is also contended that it is important to assess the probative value in context, and the Crown points to text number 4 above ("I don't care don't mention [Witness G] it anyone else and killing people or any off that in my house again I'm getting rid off that knife because you won't") and the response by the Accused Hicks "Leave they [sic] knife". The response by the Accused Hicks did not address the "dramatic" suggestion of killing people, and the link between "that knife" and talk of "killing" is an interpretation well open to the jury. The messages also corroborate Ms Kerrigan in so far as they show that at some stage the Accused Hicks did in fact have a knife.
3. The temporal circumstances are matters, the Crown contends, that can be submitted on to the jury and there is no unfair prejudice.
4. The evidence is highly probative and not unfairly prejudicial.

Consideration

1. The main argument put by the Accused Hicks stands or falls on the proposition that the word "machete" conveys some uncontroversial immutable characteristic which is simply at odds with the wounds of the deceased described in the autopsy evidence. In my view, however, there is no such characteristic which is conveyed by the word "machete". The word "machete" can mean one thing to one person and another thing to another person. For instance, the further description provided by Ms Kerrigan which included the serrated edge may not readily fit within notions of what some may think is meant by the word "machete" and would more easily fit within the description of a "knife". Indeed, all the other descriptions by Ms Kerrigan of what appeared to be the one weapon were described as a "knife", which would be consistent with the fatal wounds inflicted on the deceased. Accordingly, I do not accept that a single description of the weapon as a "machete" by Ms Kerrigan is sufficient to render the evidence either irrelevant, or insufficiently probative and unfairly prejudicial.
2. Further, the temporal disconnect in relation to the SMS text messages contended for by the Accused Hicks does not advance the argument further. When the text messages are examined, an interpretation of them would be open to the jury that Ms Kerrigan is expressing a growing sense of frustration that the knife is still hanging around after what would appear to be (to her) a frustrating length of time. When those messages are further viewed in the context of what her evidence conveys is a volatile relationship, with the Accused Hicks moving in and out at various points, the time between the killing in mid-November and the start of the text messages less than two months later, cannot be said to make the evidence irrelevant or unfairly prejudicial.
3. I am of the view that the contested evidence of Ms Kerrigan and the text messages are highly probative, and there is no danger of unfair prejudice. Accordingly, the evidence is admissible.

Orders

1. In relation to the Accused Hicks, the Court makes the following order: 1. The contested evidence of Ms Kerrigan and the SMS text messages concerning a knife are admissible.

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