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[2025] NSWSC 1398
General information, not legal advice.
Supreme Court of NSW
2025-11-04
Garling J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v KL [2025] NSWSC 1398
Hearing dates: 04 November 2025
Date of orders: 04 November 2025
Decision date: 04 November 2025
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision: (1) Grant leave to the accused to apply out of time for the proceedings to be heard by a judge alone in accordance with s 132A(1) of the Criminal Procedure Act 1986 (NSW).
(2) Order that the trial proceedings listed to commence on 10 November 2025 be heard by judge alone.
Catchwords: CRIMINAL PROCEDURE – Trial – Application for trial by Judge alone – Whether in interests of justice – Principles for determination of application for trial by Judge alone – Where trial by Judge alone has the potential to save time and expense in circumstances where a first trial has already occurred and resulted in a hung jury – Where trial by Judge alone would bolster community confidence in the administration of justice by the giving of written reasons on complex psychiatric issues – Where the issue of substantial impairment is informed by the application of community standards – Where significant pre-trial publicity of a prejudicial kind may impact the accused’s right to a fair trial – Whether directions to a jury in relation to pre-trial publicity can ameliorate any prejudice – Where a previous jury was unable to reach a verdict on the issue of the application of community standards – Trial by Judge alone determined to be in the interests of justice – Leave granted to apply out of time – Application granted
Legislation Cited: Criminal Procedure Act 1986 ((NSW) s 132A
Cases Cited: R v Abdady; R v Hosseinishoya (No.3) [2022] NSWSC 1511
R v Dawson [2022] NSWSC 552
R v White [2024] NSWSC 1369
Texts Cited: Not Applicable
Category: Procedural rulings
Parties: The Crown (Crown)
KL (Accused)
Representation: Counsel:
F Gray (Crown)
S Talbert (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Willcox Criminal & Civil Lawyers Pty Ltd (Accused)
File Number(s): 2022/198810
Publication restriction: Statutory prohibition on publication of the name of the Accused or the Deceased.
Publication is restricted until after retrial of the Accused.
By a Notice of Motion, filed 24 August 2025, the accused, KL, moves the Court for two orders: firstly, that leave of the Court be granted to apply for the proceedings to be heard by a judge alone in accordance with s 132A(1) of the Criminal Procedure Act 1986 (NSW) (“Criminal Procedure Act”); and second, that the trial proceedings listed for trial on 10 November 2025 be heard by a judge without a jury being empanelled.
The statutory provisions require that any application for trial by a judge alone in accordance with s 132A of the Criminal Procedure Act be filed more than 28 days prior to the date fixed for the hearing of the trial. On my calculation that meant that the application in this case ought to have been filed prior to 13 October 2025.
According to the evidence before the Court, the Crown was notified on 15 October that an application was to be made, the Court was first notified by email on 17 October 2025, and the application was actually filed on 21 October 2025.
As will become apparent, the application, in significant part, relates to publicity generated at the end of August, and perhaps into the first days of September. The Crown opposed an order for leave to file the application but accepted that such an application will be influenced by any merits which the Court finds.
Before coming to consider all of the merits and making a determination, it seems to me that, on any view, the application by KL is one of substance. It is not said to be wholly without merit. It requires the Court to consider and balance a range of factors, and the delay between the time by which the application was to be filed, and when it was ultimately formally filed, is not of a sufficient length as to indicate any reason why leave would not be granted.
Accordingly, I will order, in due course, that leave be granted to the accused to apply for the proceedings to be heard by a judge alone, notwithstanding that it was not filed more than 28 days prior to the trial date.
In support of the application, the affidavit of Mr Benjamin Wilcox, the principal solicitor for the accused, was read. Mr Wilcox was not required for cross‑examination.
A short chronology of important dates with respect to the upcoming trial is relevant.
The death of Uati Faletolu, which gives rise to the charges against the accused, occurred at the Sydney Royal Easter Show on 11 April 2022. The accused was arrested on 15 July 2022, and has been in detention ever since, that is to say, a period of 3 years and 3 months.
On 6 October 2023, the accused was first arraigned in this Court. From 28 April 2025 to 22 May 2025, a trial of these proceedings took place before a jury. The jury was ultimately discharged because it was unable to reach a verdict. The retrial is fixed to commence on 10 November 2025.
“I am distressed by it, as I think anyone else would be, to see often young people… hauled into this thuggish life, this violent life.”
“What I can also promise is the police are putting enormous resources into [this investigation]. Their history has shown that they will catch people who are responsible for these violent actions and [they] can't expect to get away with it.”
The article is then recorded as noting that police fear the stabbing will reignite the city's "deadly postcode wars". The article includes detail suggesting that the Mount Druitt stabbing occurred in the context of a fierce rivalry of two youth gangs, one called “67”, the other called “Ready For Anything” or “RFA”.
The article published on 28 August goes on to state a Senior NSW Police Officer as recording his view, or else the view of police, that:
“what motivated the attack is being fully investigated, including the victim’s association with any gangs.”
“We have seen worse in this environment of drill music and postcode gangs over the past few years.”
“His death is feared to be the latest in the 'postcode wars' which have plagued Sydney over the past decade.
The deaths of several young people have been linked to the feuds, including the 2022 Easter Show murder of Uati 'Pele' Faletolu.
In 2024, Iyzaa Naden, 18, also died after he was stabbed on a Blacktown street.
Naden and Faletolu had stood together in a music video for the song "Our Way", representing the 67 gang.”
Other publicity attached to Mr Wilcox's affidavit highlighted the connection of the stabbing at Mount Druitt to postcode wars, the fact that those wars were "flaring again", and the fact that authorities are concerned, with respect to the postcode wars, which are in one publication said to be, again, "spiralling out of control".
Shortly after that publicity became apparent, there was also an article in the Daily Telegraph, published on 30 August 2025, about a "terrifying home invasion". The headline of the article says this, "Guildford home invasion believed to be linked to Sydney's postcode wars". The article includes the following:
“A group of teens accused of a terrifying home invasion in Sydney's west are believed to be from a notorious postcode gang, with police probing whether the alleged attack was fuelled by the recent shooting murder of an underworld figure.”
The article later clarifies that that investigation is underway into whether the home invasion was a retaliation attack.
Earlier, on 4 May 2025, an article in the Daily Telegraph recorded the following headline:
“Postcode wars links to Marsden Park drive-by shooting key line of investigation".
“A drive-by shooting in Sydney's west is believed by police to be the latest escalation in a tit-for-tat feud between two gangs involved in the city's ‘postcode wars’.
Masked gunmen opened fire on an innocent family's home on Steeple Pl in Marsden Park about 10.45pm on Thursday, spraying a number of bullets through a front window before hopping into a getaway car and fleeing the scene.
The car was found burnt out a few suburbs away in Girraween some 30 minutes later.
As police swarmed the city's west in the aftermath, officers separately stopped a rideshare vehicle as it drove along Lucretia Rd in Toongabbie, finding Maselino Faletolu in the back seat.”
Maselino Faletolu is the brother of the deceased the subject of this trial and was a witness at the first trial.
The article goes on to include the following:
“Police sources say early investigations into the mistaken identity shooting have led them to believe it was part of an ongoing conflict between two youth gangs - 67, from Doonside, and RFA (Ready For Anything), from Mount Druitt.
Sydney has been in the grips of intermittent feuds between rival postcode gangs for the best part of a decade, with teenagers arming themselves with weapons and going toe-to-toe with rivals from different suburbs. It has led to a number of fatalities, which police say have been further spurred on by references to those incidents in songs created by drill rap groups linked to the gangs.
One such high-profile incident was the fatal stabbing of Uati Faletolu, 17-year-old associate of the 67 gang, who was killed as he worked at the Royal Easter Show in 2022.In the aftermath of that horrifying incident, members of RFA posted TikTok videos taunting their rivals of Uati's death.”
“Easter Show stabbing victim Uati Faletolu (right) in the music video for the song 'Our Way' by two local 67 rappers.”
It is sufficient to note that there is a copy of other publicity with respect to other matters published earlier in point of time and going back to the incident at the Royal Easter Show giving rise to this trial, charting the behaviour of the two gangs, police efforts to prevent criminal behaviour, and emphasising the importance of “rapper music”, disregard for personal safety, and also emphasising the existence of a so-called "postcode war".
In addition to articles about the actual events, there are also articles and reports of a more investigative type, suggesting that careful thought has been put into various reports which describe youth gangs, postcode wars, the use of violence and clearly linking the death of Uati Faletolu with those events.
The Crown case statement is in evidence and, of course, does not call for a complete recitation. The Crown's case is that the accused attended the Sydney Royal Easter Show with his older brother, his cousin and three friends. He was, at that stage, 14 years and 7 months old. He is accused of inflicting a fatal stab wound on Uati Faletolu, who was then aged 17. It is convenient to interpolate here that the accused does not deny stabbing Mr Faletolu, nor does he deny that his stab wound caused the death of Mr Faletolu.
In paragraphs 4 and 5, the Crown case statement makes plain that the Crown's case is that the accused was a member of the gang, RFA, or Ready For Anything, which was a gang from the suburb of Mount Druitt, and the deceased was known to the accused, as being associated with a gang called 67, that gang's name being derived from the postcode of Doonside, which is 2767.
The Crown's case is that there can be seen to be two groups of males, one being the accused, his brother, and the other males whom he went to the Easter Show with, and another group of males, including the deceased, his brother Maselino Faletolu and at least three other males in that group. The two groups converged.
There is no suggestion in the Crown case that the meeting was prearranged, but it is clear, from the CCTV camera footage, that over a very short period of time - described variously by witnesses as being "very quick", "ten seconds", or "perhaps up to 30 seconds", but on any view, less than a minute - that there was a meeting, or convergence, of the two groups. The deceased faced two males, who have not been identified. The accused was wearing a white hoodie and standing behind and off to one side of one of the males.
The Crown's case is that suddenly, and without apparent obvious provocation, the accused reached through the gap between the two unidentified males and, with his right-hand, stabbed the deceased once with a knife. The deceased reacted to being stabbed and stepped back, before stepping forward and throwing punches towards the two unidentified males who had been standing in front of him. By that time the accused had already turned and fled from the scene.
“The contents of each call is relied upon by the Crown as evidence relating to the accused's motive for the stabbing, that motive being his membership of RFA, his wish to resort to violence and his fascination with knives, including giving them names."
“Those calls included a call on 24 May 2022 at 1.15am, in which the accused states that 'there's like a tribal thing now...it's called RFA tribal'.
“So to get in you, you have to um stab four people...”
“The accused is a self-confessed member of a gang called RFA, based at Mount Druitt. The motivation for the stabbing was related to the tension between RFA and another gang, '67'. The gang tension was the motive for the accused stabbing the deceased. The tension also related to members of ‘67’ falsely advertising on social media that they had stabbed the accused.”
The conduct of the first trial and the submissions of the accused confirm that there will be three principal issues in the second trial: first, whether the Crown can prove that the accused intended to kill or cause grievous bodily harm to the deceased; secondly, whether the Crown can prove that the accused did not act in self-defence, that is, did not believe that his conduct was necessary to defend himself or another from the deceased; and, thirdly, whether he was substantially impaired at the time of his acts under s 23A of the Crimes Act 1900 (NSW) and therefore criminally liable only for manslaughter.
At the first trial (and it is anticipated at the second trial), the accused relied upon the expert evidence of Dr Ellis to support that, at the time he stabbed the deceased, he was substantially impaired by reason of a mental health impairment and that, according to that expert, Dr Ellis, there was a real and substantial connection between his mental health impairment, constituted by Post-Traumatic Stress Disorder (“PTSD”), and his conduct.
The Crown responds to that issue by the evidence of Dr Kerri Eagle, a well-qualified forensic psychiatrist, who, to put it briefly, accepts that the accused suffered from PTSD, and that constituted a mental health impairment. But she does not accept that the actions of the accused were "predominantly due to a substantial impairment arising out of a mental health impairment".
According to the Crown case statement, she expressed this view:
“The offence occurred in the context of a variety of factors, including in the culture of gang rivalry and violence Master Latu was immersed in, anti-social and pro-violent attitudes influenced by his peer group, psychosocial immaturity and a susceptibility to a heightened angry response and increased threat perception due to symptoms of PTSD. A heightened angry response would potentially reduce Master Latu's capacity to control his actions in certain circumstances.”
Dr Eagle also noted in her report that the accused had a history of being involved in fights with rival peer groups and that he described, to her, going out regularly to get revenge for the death of an associate; it was that death which led to his suffering from PTSD.
The Crown notes the final summary of Dr Eagle's opinion with these words:
“Overall in my view it seems unlikely from a psychiatric perspective, that Master Latu's actions at the time of the Index offence occurred predominantly due to a substantial impairment arising out of a mental health impairment (PTSD) in his capacity to control himself, understand events and/or judge whether his actions were right or wrong.”
Dr Eagle does concede that his PTSD would have contributed, to some extent, to his conduct at the time. As can be seen, the difference of opinion between Dr Ellis and Dr Eagle centres largely on a psychiatric expert evaluation of the likelihood of the PTSD suffered by the accused at the time, having any and, if so, what impact, in a causal way, upon the actions of the accused. This exchange of psychiatric expert opinion is undoubtedly relevant to a consideration of whether the accused's criminality and culpability ought be reflected by a verdict of manslaughter, being a lesser verdict than a verdict of murder.
The legal tests to be applied by the Court in considering a judge alone application are clear.
The submissions of both parties draw attention to the relevant authorities and correctly address the relevant considerations. It is unnecessary for me to try and encapsulate those principles here. It is sufficient to say that, in my view, they are adequately encapsulated in recent times in the decisions of R v Dawson [2022] NSWSC 552; R v Abdady; R v Hosseinishoya (No.3) [2022] NSWSC 1511; and R v White [2024] NSWSC 1369 at [22]-[32].
Those decisions refer to earlier decisions and encapsulate, in particular ways, the way in which the Court must approach the matter. I make this determination in accordance with those principles.
Section 132 provides that the Court may make a judge alone order if it considers that it is in the interests of justice so to do. Speaking of that phrase in Dawson, Beech-Jones CJ at CL said at [10]:
“Generally, the phrase 'interests of justice' envisages a broad assessment of a variety of matters, some concerning the interests of the parties to the litigation, but also interests wider than those of either party.”
The submissions for the accused draw attention to various factors, which the accused contends weigh in favour of a judge alone trial order. The submissions of the Crown draw attention to factors which it submits weigh against the judge alone trial order.
It is necessary for me to identify the relevant features and consider them and then consider their combination and interaction. These considerations are not put in the order nominated by the parties or in any particular order of importance.
One factor relevant is that, having regard to the particular circumstances of this case, where the accused does not put in issue that he fatally stabbed the deceased and, as was apparent from the first trial, pleaded guilty to the offence of manslaughter in front of the jury, which plea the Crown did not accept in full discharge of the Indictment, and to the fact that there has been a first trial, there is a potential to save Court time and expense in the conduct of a second trial before a Judge alone because evidence of witnesses, whose evidence is not significantly in issue, can be tendered rather than needing to be called again; the evidence of the experts can be addressed in significant respects in front of a judge in a Judge alone trial by reference to their written reports, which contain material that might be thought to be prejudicial, but in the expectation that a judge hearing the trial without a jury could discern what matters are properly to be taken into account, as opposed to leading from the experts a truncated version of the history which they were given. That evidence of the exerts could be given more readily by AVL than in front of a jury.
The second factor is that where, as there will be here, there is a rather complex psychiatric issue about whether there was any and, if so, to what extent, causal impact of the PTSD of the accused on his offending conduct, community confidence in the administration of justice is likely to be enhanced, in my assessment, by the giving of written reasons which examines carefully that complex issue and expresses a reasoned conclusion as to how that might be resolved. The two different psychiatric opinions which are proffered on this issue are a weighty matter in the trial for consideration as to whether the accused's offending conduct is, in all of the circumstances, ameliorated, in a criminal sense, so as to result in a reduction of his offending conduct to manslaughter.
I have earlier noted that the complications relating to prejudicial history being given to the psychiatrists can more easily be addressed in proceedings before a judge alone, and the examination of that history can be more readily exposed by the delivery of comprehensive reasons.
In my view, in this case, there is likely to be greater community confidence in the appropriateness of the trial process in this respect by having comprehensive reasons delivered.
**********
I Certify that this and the preceding 15 pages are a true copy of the reasons for judgment herein of the Honourable Justice Peter Garling
Date: 4 November 2025
Associate:
Coversheet amendment
R
KL [2025] NSWSC 1398
Because these reasons are being delivered ex tempore, it is necessary that, whilst I refer to some further evidence, it will not be able to be set out in full in this oral judgment. This judgment assumes the parties’ familiarity with the reasons why there was a delay between first arraignment in this Court and the commencement of the first tria,l and also assumes familiarity with the way in which the first trial was conducted.
Mr Wilcox's affidavit draws attention, amongst other things, to recent publicity occurring on 28, 29 and 30 August 2025. The publicity arises because, in late August 2025, two young men were attacked and stabbed late at night whilst at the Mount Druitt bus terminal on North Parade. One of the two young men died as a consequence of the stabbing wounds, and the other was stabbed multiple times and was taken to hospital in a serious condition.
The publicity appearing largely in the Daily Telegraph, but also in the Sydney Morning Herald, The New Daily and on Sky News, noted some features. The first was that the Premier of New South Wales was quoted by the Daily Telegraph as saying that he was "distressed" by the stabbing death of the young man at Mount Druitt, and that he was concerned about the rise of violent gang-related crime in Western Sydney. It is recorded that the Premier said:
The Crown's case was that there was some physical confrontation between the two groups, which occurred after the accused left the scene, but it became quickly apparent that the deceased had been seriously injured and had collapsed to the ground.
The Crown's case relies upon a self-recorded video, found on the mobile phone of the accused, which was filmed within a very short time after the stabbing, whilst he was making good his escape, in which the accused makes it plain that there was a relationship between what occurred and the membership of the deceased with the gang 67.
The Crown's case also relies upon a series of electronic communications of the accused's intercepted telephone calls and other transmissions by internet emanating from the accused which, the Crown says, evidences the intention of the accused and his motive for the stabbing.
It is clear that there are many references in the intercepted telephone calls to both the 67 gang and the RFA gang.
At paragraph 72 of the Crown case statement, it records that:
Of course, this is to be weighed against the fact that the issue being raised with respect to substantial impairment is an issue informed by the application of community standards. That factor alone is to be given significant weight in favour of a jury trial and is often regarded in other decisions as being a matter carrying decisive weight. But that is not always so, and here, the application of community standards is by no means a straightforward issue, because the accused was 14 years and 7 months old at the time of his offending conduct. He was by no means an adult, or even on the verge of reaching his legal maturity. The application of community standards in this case is informed by a complex interaction of psychosocial immaturity by reason of his age, the physical immaturity of his brain development, including his judgment making faculties, and then those matters being overlaid by his mental health condition of PTSD.
Having reasons which explain to the accused, the family of the deceased and the community generally, as to how these complex factors have affected, if at all, the offending conduct, will be an important consideration, in my view, in ensuring that a fair result, without the intrusion of emotion or prejudice, has been reached. This conclusion tends to diminish the undoubtedly important role of the jury in the application of community standards, here in this case, and enhance the community benefit from a judge alone trial.
I also accept that prejudice arising from the recent pre-trial publicity, in circumstances where the Crown case introduces and relies upon material which is necessarily of a prejudicial kind, namely the relevance of gang membership and of violent interactions, to the motive ascribed to the accused and to the context in which the events at the Easter Show came to take place.
Particularly, I am satisfied from the recent publicity, deriving as it does from views expressed, or apparently expressed, by the Premier of the State and by senior police officers about the existence of gang violence in the southwest of Sydney, and the existence of the so-called "postcode wars" which incorporate, not just the recent violent conduct which is regularly referred to as incorporating the conduct of and surrounding the death of the deceased.
This prejudicial material, it ought be expected, would be the subject of a direction to the jury. The jury would be directed to disregard any publicity which may have taken place outside of the trial and, of course, all trials proceed upon the basis that jurors will obey directions.
However, the fundamental proposition that jurors can obey the directions of a trial judge is not immutable and it has often been held that the more prominent the publicity, the more cautious a Court should be about discounting all risk that the effect of a direction would overcome prejudicial pre-trial publicity. I am certainly not satisfied, in the circumstances of this case, that the risk that prejudicial pre-trial publicity may come to the notice of a jury member and remain in their consideration, notwithstanding directions of the judge, is non‑existent. Put differently, the risk cannot be eliminated that the prejudicial publicity would continue to have an effect.
As well, I accept, that the particular proceedings in this trial. where material which may ordinarily be rejected because of its possible unfair prejudice, is made relevant in this case by the Crown's formulation of the motive, but that material is not being relied upon by any suggestion of any tendency on the part of the accused to act violently, or else as evidence which establishes bad character.
There is also, relevant to the issue of substantial impairment, the need to take into account matters which would otherwise be highly prejudicial, but which form part of the history which is necessary for the experts' opinions to be formed, so that great care needs to be taken with the way in which obviously prejudicial evidence about the existence of gangs, the existence of violence within gangs, the interaction of the accused, and the deceased, in respective gangs, and the role that all of those matters play in the decision-making is a complex matter which may lead to significant emotional reaction on the part of jurors and may lead to prejudicial material being used inappropriately, notwithstanding proper directions.
I also finally have regard to the views of the accused exemplified by the application which is made, although this does not carry a significant weight.
An overriding consideration in all of these matters derives from a concern, particularly having regard to the approach of the jury at the first trial, where they took a significant period, and it can be safely inferred from the questions they asked, considered, at length, the issue of the application of community standards but were ultimately unable to come to any verdict at all, that there remains a risk in this trial that a second jury may encounter the same difficulties in agreeing upon the application of community standards as the first jury.
The accused has been in custody for 3 years and 3 months. If that risk was to happen and a further trial did not take place for another six months or so, the accused would have been in detention for an intolerably long time. The risk that that might happen is a factor which I think ought be taken into account as the finality of these proceedings is a relevant factor. In drawing attention to this, I do not express any opinion as to whether if a second jury were unable to agree there would, in fact, be a third trial, or whether the Crown might accept the offered plea. Any conclusion of that kind is unnecessary for me to reach. Rather, it is the risk of any further delay in the resolution of this long outstanding criminal charge which weighs in favour of a judge alone trial.
Taking all of those matters into account, I have reached the conclusion that, weighing them up and considering all of the arguments carefully, I am satisfied that the interests of justice warrant the making of a Judge alone trial order.
Accordingly, I make the following formal orders:
Grant leave to the accused to apply out of time for the proceedings to be heard by a judge alone in accordance with s 132A(1) of the Criminal Procedure Act 1986.
Order that the trial proceedings listed to commence on 10 November 2025 be heard by a judge alone.