//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2022] NSWCCA 179
Court of Criminal Appeal (NSW)
2022-04-29
Ward P, Adamson J, Dhanji J, Hunt J, Dhanji JJ
Original judgment source is linked above.
The applicant's vehicle is observed on fire in Miranda
Further telephone communications
Ms Yarnton's first interview with police
Ms Yarnton's second interview with police
Ms Yarnton's iPhone
Statement by the applicant to police about theft of his car
Arrests
Ms Hayes' ERISP
Ms Hayes' subsequent written statement
First two trials
Arrest of Mr Mouhtaris
Third trial
Directions as to use of evidence admissible only against certain accused
Evidence of Optus representative re communications
Forensic evidence
Crown address
Counsel for Ms Yarnton's address
Directions given in summing-up
Ground 2
Applicant's submissions
Crown submissions
Consideration
Proposed orders
The applicable principles
Ms Yarnton's first recorded interview on 1 February 2015
Ms Yarnton's second recorded interview on 1 February 2015
Evidence of Ms Hayes
The Crown case against Ms Yarnton
The Crown case against the applicant
Ms Yarnton's defence case
The potential prejudice to the applicant of being tried jointly with Ms Yarnton
The directions given or other steps taken by the trial judge to ameliorate the potential prejudice
Consideration
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2022
R
Houda
[This headnote is not to be read as part of the judgment] On 5 July 2019, following a trial by jury in the District Court, the applicant, Mr Fady Houda, was found guilty and convicted on a charge of attempt to cause an explosion or fire, or both, with intent to murder Mr Dean Yarnton on or about 1 February 2015 at Picnic Point, contrary to s 30 of the Crimes Act 1900 (NSW). The applicant was tried jointly with three co-accused, Ms Yarnton (Mr Yarnton's then wife), Ms Hayes (a friend of Ms Yarnton) and Mr Mouhtaris (Ms Hayes' partner), each of whom was also found guilty on a charge of attempt to cause an explosion or fire, or both, with intent to murder Mr Yarnton. The appeal raised two issues: 1. whether a miscarriage of justice was occasioned as a result of the appellant being tried jointly with the co-accused Ms Yarnton; and 2. whether the verdict of the jury was supported by the evidence and was unreasonable. The Court (Ward P, Adamson and Dhanji JJ) held: As to issue 1: (per Adamson J, Ward P and Dhanji J agreeing) The applicant must establish some positive injustice which could not be, or was not, ameliorated by the directions given by the trial judge: [254]. The Crown case against the co-accused Ms Yarnton was significantly stronger than that against the applicant. Further, the recorded interviews of the co-accused, Ms Yarnton, were prejudicial to the applicant (because she sought to implicate him) and inadmissible against him: [252]. Nevertheless, the Crown case against the applicant was a relatively strong case, and the Crown case was that the co-accused Ms Yarnton was a liar and her version of events in her recorded interviews ought not to be accepted. In light of these circumstances, the prospect that the jury illegitimately relied on the co-accused Ms Yarnton's version to convict the applicant was remote. Moreover, the trial judge's directions were sufficient to remove any prejudice which might otherwise have arisen: [255]-[256]. Webb v R (1994) 181 CLR 41; [1994] HCA 30; Caleo v R (2021) 290 A Crim R 352; [2021] NSWCCA 179; R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unreported); Allen v R [2020] NSWCCA 173 referred to. As to issue 2: (per Ward P, Adamson and Dhanji JJ agreeing) None of the matters referred to by the applicant gave rise to a rational inference or hypothesis consistent with innocence that was open on the evidence: [212]. The timing of the communications between all of the co-accused, in conjunction with the evidence of a vehicle appearing to belong to the applicant at the service station where the gas bottles to commit the offence were obtained, dispels any reasonable doubt that the applicant was part of a joint criminal enterprise to murder or cause grievous bodily harm to Mr Yarnton: [219]. There is no rational inference to suggest that the applicant was not the user of a telephone device that the evidence established was used to communicate with the co-accused Ms Hayes, and there is no rational inference to suggest that the applicant was not with the co-accused Mr Mouhtaris at the scene to commit the offence: [220] In those circumstances, the verdict of guilty was not unreasonable: [222]. M v R (1994) 181 CLR 487; [1994] HCA 63; MFA v R (2002) 213 CLR 606; [2002] HCA 53; SKA v R (2011) 243 CLR 400; (2011) HCA 13; Libke v R (2007) 230 CLR 559; [2007] HCA 30; Pell v R (2020) 268 CLR 123; [2020] HCA 12; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Knight v R (1992) 175 CLR 495; [1992] HCA 56; Barca v R (1975) 133 CLR 82; [1975] HCA 42; Hillier v R (2007) 228 CLR 618; [2007] HCA 13; Coughlan v R (2020) 267 CLR 654; [2020] HCA 15 referred to.
Legal principles
[2002] HCA 53
[2016] HCA 35
(1975) 133 CLR 82
(1993) 179 CLR 44
(2020) 267 CLR 654
(2007) 228 CLR 618
(1992) 175 CLR 495
(2007) 230 CLR 559
(1994) 181 CLR 487
(2002) 213 CLR 606
(2020) 268 CLR 123
(2016) 258 CLR 308
(1990) 19 NSWLR 677
(2011) 243 CLR 400
(1994) 181 CLR 41
(1984) 57 ALR 543