R v Stephen; R v Tadrosse

Catchwords: CRIME – evidence – murder – two co-accused – joint criminal enterprise – application to release evidence given before the Crime Commission – ss 45(4) and 45(5) of the Crime Commission Act 2012 (NSW) – whether disclosure in the interests of justice – factors weighing for and against disclosure – two stage approach to disclosure to give witness opportunity to be heard

Legislation Cited: Crime Commission Act 2012 (NSW), ss 21, 24, 25, 27, 39, 45
Director of Public Prosecutions Act 1986 (NSW), s 15A

Cases Cited: Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
R v Danishyar [2023] NSWSC 922
R v Hawat (No 1) [2019] NSWSC 1583
R v Jaghbir (No 1) [2020] NSWSC 762
R v McCloskey (No 1) [2020] NSWSC 771
R v Munshizada, Danishyar and Baines [2020] NSWSC 566
R v Parkes; R v Sloan [2024] NSWSC 16
R v Quami (No 11) [2016] NSWSC 252
R v Stephen; R v Tadrosse (No 2) [2025] NSWSC 284

Category: Procedural rulings

Parties: Rex (Crown)
Danny Stephen (Accused)
Tony Phillip Tadrosse (Accused)
New South Wales Crime Commission (Applicant)

Representation: Counsel:
K Jeffreys (Crown)
K Prince (Accused Stephen)
M Avenell SC (Accused Tadrosse)
R Bhalla (Applicant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
City Group Legal (Accused Stephen)
Crimcorp Defence Lawyers (Accused Tadrosse)
Crown Solicitor’s Office (Applicant)

File Number(s): 2023/00116714; 2023/00116875

Publication restriction: Nil.

JUDGMENT

1. Danny Stephen and Tony Tadrosse are both charged with the murder of Kalim Saliba and the violent assault of Shahidy Saliba on 29 April 2020. They are due to stand trial in this Court on Monday 21 July 2025.

2. By Notice of Motion dated 26 October 2024, the Director of Public Prosecutions (“DPP”) sought an order under s 45(4) of the Crime Commission Act 2012 (NSW) (“the Act”) that a certificate be issued to the New South Wales Crime Commission (“the Commission”) requiring it to make available to the court evidence given by certain witnesses to the Commission on specified days. The DPP sought a second order that, in the event I made the order under s 45(4), I then make an order pursuant to s 45(5) of the Act that, if satisfied that the interests of justice so require, the evidence be made available to the Office of the DPP (“ODPP”), to the accused persons and to their legal representatives.

3. The background to the motion is that on 18 August 2023 the Commission provided disclosure certificates to the ODPP which indicated that the Commission may be in possession of material relevant to the prosecution of the accused, being material relating to the preparation and conduct of hearings pursuant to s 24 of the Act, which remain subject to restrictions on publication or disclosure under s 45 of the Act.

4. The relevant material is disclosable under s 142 of the Criminal Procedure Act 1986 (NSW) but subject to a non-publication direction under s 45(1) of the Act.

5. The motion came before me for hearing on 16 December 2024. It was not opposed, and I made an order that day under s 45(4) of the Act that the material be provided to me not before Monday 3 February 2025 in order for me to determine whether it should be released to the parties pursuant to s 45(5) of the Act. I indicated that I would provide my reasons for doing so at the same time as I published my reasons on the s 45(5) application.

6. Having considered the application by the DPP, I propose to make an order under s 45(5) of the Act in relation to a limited portion of the material. What follows are my reasons for making the orders under both s 45(4) and s 45(5) of the Act. As I will explain below, I have provided confidential reasons addressing the subject matter of the relevant material as a confidential annexure to this judgment.

The hearing of the motion

7. The motion was listed for hearing on 16 December 2024, at the same time as two other motions in this matter.

8. Both counsel for the Crown and counsel for the Commission filed written submissions setting out the relevant legal principles. Although the contents of the material the subject of the application was known to the Crime Commissioner, as is the usual practice, the contents were not known to the legal representatives for the Crown nor either accused.

9. The Crown submitted that the court would consider that it may be desirable in the interests of justice that particular evidence given before the Commission be made available to the parties: s 45(4)(b). It was noted that the test is not a stringent one, and one which is “readily satisfied”. The decisions in R v Hawa**t (No 1) [2019] NSWSC 1583 and R v Munshizada, Danishyar and Baines [2020] NSWSC 566 were relied upon in relation to the relevant principles.

10. The Commission took a neutral position and counsel for both accused indicated, in effect, that without knowing what is in the material their only position could be a neutral one as well.

11. I was further assisted by confidential oral submissions from Mr Bhalla of counsel in a closed court session on Tuesday, 18 March 2025. After I read the material, I formed a tentative view that some of the material should be released. In order to afford procedural fairness to the relevant witnesses regarding any specific concerns they had, I arranged for my associate to contact the legal representatives for the Crown, and both accused to ascertain their position in relation to me hearing from counsel for the Commissioner further in a closed court session in their absence. They all indicated that they did not object to this course. There is precedent for this course being taken: Hamill J took a similar approach in R v Quami (No 11) [2016] NSWSC 211 (see at [12]) as did I in R v Parkes; R v Sloan [2024] NSWSC 16.

12. Following the closed court hearing on 18 March 2025, I was provided with further information by the Commission relevant to the position of the witnesses. I have addressed that material in my confidential reasons.

The Crown case

13. The Crown case statement is very detailed. I do not consider it necessary to recount it in detail but, briefly, it can be outlined as follows.

14. As at 28 April 2020, the deceased Kalim Saliba and his wife Shahidy Saliba resided in their home in Cherrybrook. He was 86 years old, and she was 83 years old.

15. At approximately 12:15am on Wednesday, 29 April 2020, two males broke into and entered their home in Cherrybrook. One of the males was masked and armed with a long wooden stick with a ball-shaped end. The male used this to assault the elderly couple after demanding money from them. Kalim was killed in the attack, but Shahidy was able to get out of the house and obtain help from neighbours. Nothing was stolen from their home. The actual murder weapon has not been identified or located.

16. There is no dispute that the offences were committed; the dispute concerns the identity of the offenders.

17. Mr Tadrosse and Mr Stephen are related to the victims, being their nephew and great-nephew respectively. Mr Stephen had been to the victims’ house when he was young and had more recently been close to the victims’ granddaughter, Chantel Saliba, during a period when Ms Saliba would drop off money to the house.

18. On the afternoon of 28 April 2020, Mr Tadrosse purchased phone credit for a mobile phone service referred to as his “covert” service. During the early afternoon, this phone service was in contact with a phone service referred to as Mr Stephen’s “covert” service.

19. Mr Tadrosse caught a train from Kings Cross, near his home, to Thornleigh, arriving around 4:00pm. From that point, call charge records indicate that Mr Tadrosse’s and Mr Stephen’s covert services used cell towers in parallel with each other and with Mr Stephen’s personal service.

20. In the hours between about 5:30pm and midnight, two vehicles were recorded by CCTV cameras at different times, driving in and around Cherrybrook on numerous occasions and passing the victims’ house: a grey Audi and a grey HiLux ute. The Audi last drove into Cherrybrook around 12:03am and out of Cherrybrook around 12:20am, between which times the offences were committed.

21. Call charge records for Mr Tadrosse’s and Mr Stephen’s covert phone services indicate that from 5:30pm until after 12:20am the location of the cell towers they each used were consistent with the movements of the Audi or the Hilux, as they were recorded by CCTV cameras driving in and around Cherrybrook at different times. Between 12:19 and 12:21am, there were a number of phone calls between the two services.

22. The Audi was identified as an Audi TT RS coupe, with Victorian registration VAV315, which was used by Mr Stephen during the first half of 2020. Mr Stephen’s friend Mitchell Aquilina owned a grey Hilux DYA96G, which Mr Stephen drove at times.

23. After 12:30am, the Audi was recorded by toll records and CCTV footage travelling from Pennant Hills to Potts Point, arriving shortly before 1:00am. The cell towers used by Mr Tadrosse’s and Mr Stephen’s covert services mirror this movement.

24. In the early hours of 29 April, there were further calls between the two covert services, and Mr Stephen transferred $150 from his bank account to Mr Tadrosse’s.

25. Shortly after 2:00am, Mr Tadrosse took a taxi from Potts Point back to Pennant Hills, where he stayed for less than two minutes before returning home, arriving soon after 3:00am.

26. At 4:44am, Mr Tadrosse called the National Coronavirus Helpline. He reported that he had symptoms and had recently been at home, to the grocery shop and walking the dog. This evidence is relied on against Mr Tadrosse as evidence of consciousness of guilt.

27. On 25 January 2022, Mr Stephen told police he could not remember driving the grey Audi. This evidence is relied on against Mr Stephen as evidence of consciousness of guilt.

28. Neither accused has ever provided any statement, their respective defence statements simply state that it was not them. In assessing the material produced by the Commission, I have had regard to how the Crown puts its case and the anticipated defence, which is presumably either that they were not in the area, were not together in the area, or that there is an innocent explanation as to why they were in the vicinity of the murder on the evening of 28/29 April 2020.

29. The Crown case that the two accused are responsible for these offences is circumstantial and includes the following:

30. Money motive;

31. Knowledge of the Saliba’s home address/safe/financial background;

32. Movements of an Audi associated with Mr Stephen conducting surveillance of the house on the day of the break-in;

33. That Mr Tadrosse travelled from his home to meet up with Mr Stephen in that area that day (established by phone and other records);

34. That the two accused were together that day (established by phone records);

35. That covert mobile phones associated with each accused were in the Cherrybrook area before, during and after the home invasion;

36. Lies told by each accused the Crown relies upon as consciousness of guilt;

37. The absence of any other viable suspects.

38. The Crown case on murder is put on three alternate bases:

39. That one or the other of Mr Tadrosse or Mr Stephen deliberately caused the blunt head injury to Kalim Saliba, intending to kill him or cause him really serious bodily harm; or

40. That the two men reached an agreement to assault Kalim and/or Shahidy Saliba with the intention of stealing their property, while armed with an offensive weapon, and it was part of that agreement that at least really serious bodily harm would be caused to Kalim and/or Shahidy Saliba; or

41. That the two men reached an agreement to assault Kalim and Shahidy Saliba with the intention of stealing their property, while armed with an offensive weapon, and foresaw the possibility that at least really serious bodily harm would be caused to Kalim and/or Shahidy Saliba in the course of carrying out that plan.

The Crime Commission Act 2012 (NSW)

31. As I observed in R v Hawat (No 1) [2019] NSWSC 1583 at [25] and [26] and R v Parkes*; R v Sloan* at [20], the Commission has investigative powers not available to regular New South Wales police officers.

32. By virtue of ss 24, 25, 27 and 39 of the Act, the Commissioner can summon a person secretly, examine them in circumstances where their right to silence has been expressly abrogated and prosecute them should they give misleading information to the Commission. Such hearings are held in private although an order can be made that police officers be permitted to view the proceedings from a separate room (s 21).

33. In exchange for the abrogation of a witness’s right to silence, the Act provides that the Commission cannot use any material given by such a witness in proceedings against them (see s 39) and a non-publication order is usually made over the compelled testimony. This is something that is explained to each witness before an examination commences.

34. Section 45 of the Act is headed “Publication or disclosure of evidence” and is in these terms:

45 Publication or disclosure of evidence

(1) The Commission may direct that:

(a) any evidence given before it, or

(b) the contents of any document, or a description of any thing, produced to the Commission or seized under a search warrant, or

(c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or

(d) the fact that any person has given or may be about to give evidence at a hearing,

must not be published, or must not be published except in such manner, and to such persons, as the Commission specifies.

(2) The Commission must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

(3) A person must not make a publication in contravention of a direction given under this section.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

(4) If:

(a) a person has been charged with an offence before a court of the State, and

(b) the court considers that it may be desirable in the interests of justice that particular evidence given before the Commission in relation to which the Commission has given a direction under this section be made available to the person or to a legal practitioner representing the person and to the prosecutor,

the court may give to the Commission a certificate to that effect and, if the court does so, the Commission must make the evidence available to the court.

(5) If:

(a) the Commission makes evidence available to a court in accordance with subsection (4), and

(b) the court, after examining the evidence, is satisfied that the interests of justice so require,

the court may make the evidence available to the person charged with the offence concerned or to an Australian legal practitioner representing the person and to the prosecutor.

(6) This section has effect subject to section 45A.

(7) In this section:

publish includes:

(a) disclose to a person, and

(b) in relation to evidence or a record of evidence—disclose any information directly contained in or implied from that evidence or record, except where the information could be obtained elsewhere.

35. As the terms of s 45 make clear, despite the fact that a non-publication order is usually made at the time that a witness gives evidence before the Commission, this Court can nonetheless order that the material be disclosed in certain specified circumstances concerning the “interests of justice”. Under s 45 of the Act, there are two stages to the potential disclosure of this material.

36. First, under s 45(4) of the Act, the court can provide the Commission with a certificate, if it considers that it “may be desirable in the interests of justice” that the particular evidence be provided to the court. That is the course I took on 16 December 2024.

37. Secondly, if such a certificate is granted, s 45(5) of the Act requires the court to examine all of the material and then consider whether it is “satisfied that the interests of justice” require that it be made available to, in this case, the ODPP and the accused.

38. Section 45 of the Act was amended on 28 November 2014 following the decision in Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20*.* Its operation was first considered by Hamill J in R v Quami (No 11)**. It has since been considered, inter alia, by me in R v Hawat (No 1) [2019] NSWSC 1583, R v Danishyar [2023] NSWSC 922 and R v Parkes; R v Sloan [2024] NSWSC 16, by Davies J in R v Jaghbir (No 1) [2020] NSWSC 762 and R v McCloskey (No 1) [2020] NSWSC 771, and by Fagan J in R v Munshizada, Danishyar and Baines [2020] NSWSC 566.

39. The phrase “the interests of justice” appears in both tests in s 45 but in different statutory contexts. As Hamill J observed in R v Quami (No 11) at [19]:

“The expression ‘interests of justice’ is a phrase of very wide import which allows a wide number of considerations to be taken into account. In O’Hare v DPP [2000] NSWSC 430 in which O'Keefe J said at [47] - [49]:

‘…the phrase in the “interests of justice”, has been construed in many contexts. Furthermore, it too is a phrase of wide impact which comprehends many factors. It is therefore undesirable, possibly impossible, to define it.

…

Since there will be a myriad of factual circumstances to which the phrase may be applied it is undesirable to limit by reference to a rigid definition what the interests of justice are.’”

Reasons for making the order under s 45(4) of the Act on 16 December 2024

40. Having regard to the statutory language, the first test is clearly a less stringent test than the second one; it simply requires a satisfaction that it “may be desirable in the interests of justice” that the particular material be provided to the court.

41. Given the nature of the application, the usual practice is that only limited assistance can be given to the court in determining whether the s 45(4) test is met. Despite this, I was satisfied that the fact that there was no objection to the material being produced to the court under s 45(4) is a relevant consideration.

42. As I have observed previously (see for example R v Parkes; R v Sloan at [43]), it seems to me that if the Commission gives notice to the ODPP that there may be relevant material and there is no objection to that material being produced to the court in order for the court to determine whether it should be released, that will ordinarily be sufficient to meet the low test in s 45(4) of the Act.

43. One of the only reasons that has been identified in the previous decisions of this Court concerning s 45(4) of the Act as warranting a refusal to even look at the material under s 45(4) of the Act was when the application was made very close to the trial date. In R v Hawat (No 1), the accused opposed the s 45(4) application on the basis of the potential delay to the trial date should the material subsequently be made available to the parties under s 45(5). I was satisfied that the prospect of delay was a discretionary factor more pertinent at the s 45(5) stage of the inquiry. I note that a similar approach was taken by Davies J in R v McCloskey (No 1) [2020] NSWSC 771. As stated above, that was not what occurred in this case – the application was made in excess of six months prior to the trial date.

44. It was for these reasons that I was satisfied on 16 December 2024 that the statutory test in s 45(4) of the Act was met.

Consideration: Section 45(5) application

45. Under the second test in s 45(5), production is not to be ordered unless “the interests of justice require” its production. Although the first test is to be considered without access to the relevant material, as I observed in R v Hawat (No 1) at [49] and [97], the second stage requires the court to examine the material and form a preliminary view as to the probative value of the material and whether any relevant factors militate in favour of disclosure or non-disclosure.

46. Fagan J observed the following in regard to the test under s 45(5) in R v Munshizada, Danishyar and Baines at [10]:

“In my view, before s 45(5) will be engaged, the Court must be satisfied that dissemination is ‘required’ in the sense that the interests of justice would otherwise be impeded or frustrated. It would not be sufficient that, upon reading the material, the Court should be left with no more than speculation that either the Crown or the defence could find it useful. A determination that the Commission’s evidence should be disseminated to the parties would depend upon the Court finding within it something that would have a material bearing upon the trial – and also that the Court should be satisfied that dissemination would not run counter to collateral aspects of the interests of justice, concerning persons who are not involved in the trial, such as the matters considered in the following paragraphs.”

47. Turning to the relevant factors militating for and against an order being made under s 45(5). In R v Quami (No 11), Hamill J suggested a non-exhaustive catalogue of matters which might arise for consideration when assessing what the interests of justice require in an application of this nature: at [22].

48. The starting point is that the evidence was given in private and is subject to a direction that it must not be published. A witness who has been informed that the material cannot be published will have a reasonable expectation that the evidence will remain private and will not be published: R v Quami (No 11) at [23]; R v Hawat (No 1) at [88]; R v Munshizada, Danishyar and Baines at [8].

49. I have considered this application on the basis that the following factors would militate in favour of releasing the material in the interests of justice, although none of them are determinative:

50. If the person examined is a witness to be called by the Crown in the trial: R v Hawat (No 1) at [90];

51. If the person examined could potentially give important evidence or provide important information;

52. If one or more of the answers given to the Commission is patently inconsistent with what that witness is expected to give evidence about at trial: R v Quami (No 11) at [24]; R v Hawat (No 1) at [90];

53. If the person examined is not expected to be a witness at the trial but their evidence may contain important exculpatory information or give rise to theories of the case that may not be readily apparent to the defence or the prosecution: R v Quami (No 11) at [25]; R v Hawat (No 1) at [90(3)].

54. I am satisfied that the following factors militate against releasing the material in the interests of justice but, again, they are not determinative:

55. If the person examined may be placed in physical danger, may be seen as an informant, or has provided information inculpating known or suspected criminals: R v Quami (No 11) at [26]; R v Hawat (No 1) at [91(1)];

56. If the witness has expressed fear during their Commission testimony: R v Quami (No 11) at [26]; R v Hawat (No 1) at [91(1)];

57. If the witness refused to answer questions and was prosecuted under s 25(2) of the Act: R v Hawat (No 1) at [91(2)];

58. If the answers given to the Commission are fanciful or lack credit. It is to be accepted that such an assessment must be made with caution when based on the transcript alone. R v Quami (No 11) at [28]; R v Hawat (No 1) at [91(4)];

59. If the ODPP application is not made in a timely manner and the release would lead to the trial being vacated: R v Hawat (No 1) at [91(5)]; R v McCloskey (No 1) [2020] NSWSC 771 at [23].

60. The following matters will also be considered by the court:

61. If the witness was compelled to give evidence before the Commission despite objecting. Again, while this may contribute to reluctance to release the material, it is not determinative: R v Quami (No 11) at [27].

62. If the witness consents to the release of the material. But this may depend upon the views of the Commission who are aware of other evidence: R v Quami (No 11) at [30]; R v Hawat (No 1) at [90(4)].

63. If the court determines that the relevant factors militate in favour of disclosure, it is then appropriate to consider and determine any public interest immunity claim made in relation to the transcripts by the Commission. Although the Act makes no express reference to the right of any affected witness to be heard on a s 45(5) application, Hamill J considered this question in R v Quami (No 11) at [30]-[31] when he observed the following:

“Another relevant factor is whether a witness who gave evidence before the Crime Commission consents to the release of their evidence. Such consent is not determinative as the Crime Commission may oppose the release of the material for reasons beyond the knowledge or care of the witness. Similarly, an objection by the witness to the release of the evidence is a relevant consideration but not a determinative one.

The factor referred to in the preceding paragraph raises a practical consideration when an application under s 45(4) and s 45(5) is brought. A witness whose evidence is subject to such an application has a right to be heard, at least in opposition to an order under s 45(5). This raises practical problems because the accused may not be aware of the identities of witnesses who gave evidence before the Crime Commission. As I suggested in argument, one possible approach is for the Judge to consider the application on a preliminary or provisional basis and, if a view is formed that the material may be released, call on submissions from the witness.”

53. Fagan J adopted a similar approach in R v Munshizada, Danishyar and Baines when he observed the following at [11]:

“… ‘the interests of justice’ is a broad concept, as has been observed in other contexts such as those referred to by Hamill J in R v Quami (No 11) at [19]-[21]. Having regard to the potential for examinees to be affected by a decision under s 45(5), the interests of justice must be taken here to embrace not only the fairness of the trial but also the need to protect examinees from physical threat and the reasonable expectations of examinees that non-publication directions will be enforced.”

54. Given that the parties were not aware of the contents of the material, no submissions could be made as to whether the s 45(5) test was met. As stated above, the Commission took a neutral position, and the Crown’s role was to discharge itself of its disclosure requirements under s 15A of the Director of Public Prosecutions Act 1986 (NSW).

55. As stated above, subsequent to the hearing and with the consent of all of the parties, I was provided with further limited information as to whether or not the persons examined by the Commission were or were not expected to be witnesses at the trial. That material was of assistance, and I have addressed it in the confidential annexure to this judgment.

56. As I observed in R v Danishyar [2023] NSWSC 922 at [47], the court’s statutory role in such applications is a difficult one because, unlike the Crown and the accused, the court does not have a copy of the full brief of evidence, nor should it. But this raises the practical difficulty that the person examined by the Commission may not be expressly referred to in the Crown Case Statement but may be referred to in the evidence of witnesses to be called at the trial or, for example, surveillance device material or intercepted telephone calls. Any judge considering an application under s 45(5) of the Act only has a limited knowledge of what can often be a complex brief.

57. In considering the present application, I had the advantage of considering the Crown case in some detail for the purposes of the application by Mr Tadrosse to exclude some of the evidence to be admitted solely against him. A similar situation arose in R v Parkes; R v Sloan. I was required to understand the Crown case in some detail in order to consider that application in which I also gave judgment today: R v Stephen; R v Tadrosse (No 2) [2025] NSWSC 284 (restricted). Having the benefit of the detailed Crown case statement in that matter has assisted me in ascertaining what the interests of justice require under s 45(5).

58. I have had regard to the observation of Fagan J in R v Munshizada, Danishyar and Baines at [10] that a determination that the Commission’s evidence should be disseminated to the parties would depend upon the court finding within it something that would have a material bearing upon the trial. Applying that test and having regard to the relevant factors militating for and against production of the material, I have concluded that although I would not release most of the material, the interests of justice require that I release a small portion of it. On the material that is presently known to me, the only portion of the material which the interests of justice presently require me to release is the limited portion I indicated to counsel for the Crime Commission following the closed court hearing on 18 March 2025. I did so in order to give the relevant witness the opportunity to be heard. Although that witness maintained their objection, I have considered the basis of that objection and am satisfied that a small portion of the transcript confined to one narrow issue should be released under s 45(5) of the Act.

59. I have set out brief confidential reasons detailing the content of the compelled testimony in a separate and unpublished annexure to this judgment. I took the same approach in R v Danishyar and R v Parkes; R v Sloan. I propose to order that this annexure be placed in a sealed envelope marked “Not to be opened except by order of a judge of this Court or a judge of a higher Court” and kept with the file copy of this judgment.

60. Accordingly, I make the following orders:

61. The application by the Crown for material to be released under s 45(5) of the Crime Commission Act 2012 (NSW) is refused with the exception of a limited portion, namely, NSW Crime Commission transcript on 15 June 2023 limited to pages 1 to 6 (only lines 1 - 20) and pages 8 (from line 17) until the end of page 12.

62. The confidential material provided under the s 45(4) Crime Commission Act 2012 (NSW) certificate and the confidential affidavits and other material provided by the Commission for the s 45(5) application be returned to the New South Wales Crime Commission, subject to the undertaking of its legal representatives to make it available as required by the court.

63. If an application is made for access to the sealed envelope referred to at [59], no such application will be considered without the New South Wales Crime Commission first being notified of it.

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