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[2025] NSWSC 823
General information, not legal advice.
Supreme Court of NSW
2025-07-25
N Adams 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 Stephen; R v Tadrosse (No 3) [2025] NSWSC 823
Hearing dates: 22 July 2025
Date of orders: 22 July 2025 and 25 July 2025
Decision date: 25 July 2025
Jurisdiction: Common Law
Before: N Adams J
Decision: (1) Mrs Shahidy Saliba is to give evidence by audio-visual link.
(2) That a view be held in this matter on a date to be advised.
(3) The statements by Mr Tadrosse to the receptionist at “Smile Concepts” on 28 April 2020 are admissible.
(4) The statements by Mr Tadrosse to the Coronavirus Helpline on 29 April 2020 are admissible.
Catchwords: EVIDENCE – application to exclude evidence – s 137 Evidence Act – whether evidence as to expectation of financial gain is prejudicial – whether evidence of lies can be admitted as proof of consciousness of guilt – whether view warranted – whether evidence can be given by audio-visual link
Legislation Cited: Crimes Act 1900 (NSW), ss 18, 98
Evidence Act 1995 (NSW), ss 53, 55, 137
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
Cases Cited: *Cavanagh v R; McIvor v R; O’*Keefe v R [2023] NSWCCA 164
Edwards v R [2022] NSWCCA 22
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Burton [2013] NSWCCA 335; 237 A Crim R 238
R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
R v SJRC [2007] NSWCCA 142
R v Stephen; R v Tadrosse (No 2) [2025] NSWSC 284
R v Stephen; R v Tadrosse (No 4) [2025] NSWSC 824
R v Tortell (No 5) [2019] NSWSC 1665
RJ v R [2025] NSWCCA 68
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Category: Procedural rulings
Parties: Rex (Crown)
Danny Stephen (Accused)
Tony Phillip Tadrosse (Accused)
Representation: Counsel:
Mr E Balodis (Crown)
Mr K Prince (Accused Stephen)
Ms M Avenell SC (Accused Tadrosse)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
City Group Legal (Accused Stephen)
Crimcorp Defence Lawyers (Accused Tadrosse)
File Number(s): 2023/00116714
2023/00116875
Publication restriction: Nil.
Tony Tadrosse and Danny Stephen both stand charged with the murder of Kalim Saliba (contrary to s 18(1)(a) of the Crimes Act 1900 (NSW)) and the assault with intent to rob Shahidy Saliba with wounding whilst being armed (contrary to s 98 of the Crimes Act).
On 29 April 2020, at about 12:15am, 86-year-old Kalim Saliba and his 83-year-old wife Shahidy Saliba were watching television in their home in Cherrybrook when, on the Crown case, one or two persons entered their home to rob them. There is no dispute that Mr Saliba was killed by an intruder that night and that Mrs Saliba was assaulted. The dispute is as to the identity of the assailant(s).
The accused were arrested and charged with the murder of the deceased and the assault of Mrs Saliba on 12 April 2023. Both men have entered pleas of not guilty to both charges. Their joint trial is listed to commence before me (and a jury) on 28 July 2025.
Some pre-trial argument was heard by me on 16 to 18 December 2024. I delivered my reasons for my ruling in that matter on 28 March 2025: R v Stephen; R v Tadrosse (No 2) [2025] NSWSC 284.
On 22 July 2025, I heard further pre-trial argument on several issues raised by the parties. I made a ruling at that time that I would grant leave for Mrs Saliba to give her evidence by audio-visual link and make an order for a view and I reserved my reasons. The reasons that follow address those orders as well as two further evidentiary rulings relating to evidence objected to by Mr Tadrosse.
The further pre-trial issue of the availability of the basis of liability relied upon by the Crown is the subject of separate reasons: R v Stephen; R v Tadrosse (No 4) [2025] NSWSC 824.
The Crown case is circumstantial. I have already set it out in R v Stephen; R v Tadrosse (No 2) [2025] NSWSC 284 and R v Stephen; R v Tadrosse (No 4) [2025] NSWSC 824 and do not propose to do so again for the purposes of these rulings.
What is important is that the Crown case is a circumstantial one based on, inter alia, CCTV, telephone records and movements, and the locations where an Audi said to be driven by Mr Stephen was observed. A very detailed Crown Case Statement has been provided. It sets out in detail how it is the Crown seeks to chart the movements of the two accused to prove its case. I will refer to other specific aspects of the Crown Case Statement when necessary in these reasons.
On 1 July 2025, a number of pre-trial issues were raised by a note provided for Mr Tadrosse. Since that date, most of these issues have been resolved. Only two of those issues remained for determination, set out in (3) and (4) below, alongside two orders sought by the Crown:
Whether Mrs Saliba should be able to give her evidence audio visually from her home;
Whether there should be a view in this matter;
Whether Mr Tadrosse’s telephone call with Smile Concepts on 28 April 2020 should be excluded; and
Whether Mr Tadrosse’s calls with the Coronavirus Helpline, apart from his name, address and telephone number, should be excluded.
I shall consider each of these issues in turn.
By notice of motion dated 18 July 2025, the Crown sought an order that the court grant leave to Mrs Shahidy Saliba to give evidence in this trial by audio-visual link. Issues associated with Mrs Saliba’s capacity to attend court to give evidence had been foreshadowed previously prior to a mention before me on 1 July 2025.
As set out in the supporting affidavit of Oliver Gilson affirmed on 17 July 2025, Mrs Saliba is now 88 years old. The medical certificate which is attached to the affidavit opines that Mrs Saliba is “essentially house bound” due to severe mobility issues. The Crown prosecutor indicated during submissions that Mrs Saliba is also deaf in one ear, blind in one eye and could not clearly see any documents or photos if they were to be shown to her. Moreover, she cannot read in either Arabic or English and will be giving her evidence through an Arabic interpreter.
It is proposed by the Crown that Mrs Saliba will give evidence from her residence. The people present while she gives evidence will include Detective Senior Constable Chen, who has no connection with this investigation. It is proposed that he will act in the capacity of a court officer. The only other persons to be present will be a court-appointed Lebanese Arabic interpreter and Lily Saliba, who is Mrs Saliba’s daughter-in-law and will act as a support person.
Counsel for both accused did not take issue with the presence of these individuals. It was accepted that there would be no documents that needed to be shown to her in cross-examination and that the other potential difficulties with her evidence would also arise if she was to give her evidence in the courtroom.
A further issue which arose at the hearing on 22 July 2025 is that Mrs Saliba has recently fallen and bruised her face. Counsel for both accused do not take issue with this provided that should the bruising remain apparent by the time Mrs Saliba gives evidence the jury is told that the bruising is clearly not connected with the injuries she received during the assault on her.
Although there was ultimately no objection to Mrs Saliba giving her evidence from her home, given that she is the only witness to give direct evidence of the events leading to the charges before the court, I have considered the terms of s 5B of the *Evidence (*Audio and Audio Visual Links) Act 1998 (NSW). I am satisfied that the necessary facilities are available, that the evidence can more conveniently be given in Mrs Saliba’s home, that the direction that Mrs Saliba give her evidence by way of audio-visual link is not unfair to any party and that Mrs Saliba will give the evidence.
It is for these reasons that I made the order in court on 22 July 2025 that Mrs Saliba give evidence in the way I have outlined.
By notice of motion dated 18 July 2025, the Crown made application that a view be held during the jury trial, pursuant to s 53 of the Evidence Act 1995 (NSW). This application was foreshadowed prior to a mention before me on 1 July 2025.
As to the scope of the view, Annexures A and B to Mr Gilson’s affidavit comprise a schedule of where the view would be, including relevant street maps as well as what would be indicated by the shower. It is proposed that the jury will be shown relevant areas of Cherrybrook, including where CCTV cameras are located and the residence of the victims where the alleged offending occurred. It is not proposed that the jury would enter the house (apparently it has been sold since the events the subject of this trial). The jury will also inspect areas of Boundary Road in Pennant Hills, where the residence of Mr Stephen’s parents is located and where a relevant vehicle was spotted by Highway Patrol. It is proposed that the jury will be lead on foot for parts of the view and will be seated on a bus for others, as set out in the view plan.
It was submitted on behalf of the Crown that the view will assist the jury by improving the jury’s understanding of the area’s geography and providing helpful context to the evidence the Crown intends to lead.
Counsel for both accused did not oppose this application or the suggested locations for the view.
Section 53 of the Act is in these terms:
53 Views
(1) A judge may, on application, order that a demonstration, experiment or inspection be held.
(2) A judge is not to make an order unless he or she is satisfied that—
(a) the parties will be given a reasonable opportunity to be present, and
(b) the judge and, if there is a jury, the jury will be present.
(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following—
(a) whether the parties will be present,
(b) whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence,
(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,
(d) in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated,
(e) in the case of an inspection—the extent to which the place or thing to be inspected has materially altered.
(4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.
(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.
Having regard to the matters upon which I must be satisfied before I would make such an order, I note that both accused are represented by counsel. Both Ms Avenell SC and Mr Prince will be present at the view. Both accused, who are presently in custody, are content for their counsel to be present and do not insist on their right to attend. Clearly the jury, court officers, a court reporter, the shower and my staff and I will also be present at the very minimum.
Having regard to the Crown Case Statement, I am satisfied that the view will assist the jury in resolving issues of fact and understanding of the evidence. Significant portions of the evidence are in the form of CCTV cameras and plans and understanding where that footage has been taken from, and the distance between cameras would assist the jury.
Counsel did not raise any potential prejudice from the view. Given that the scope of the view has been set out in writing, I am satisfied that it would not be misleading or confusing should the script provided to the court be adhered to.
It is proposed that the shower be the officer in charge. By agreement, he will be restricted to simply pointing out matters. He will not be permitted to comment or give an opinion about anything he will be indicating to the jury unless there is a written jury question provided to me which, after discussion with counsel present, it is agreed can be answered.
For all of these reasons, I am satisfied it is appropriate that a view be held in this matter.
The Crown case is that Mr Tadrosse left his home in Potts Point at approximately 2:00pm on 28 April 2020 and subsequently met up with Mr Stephen in Cherrybrook. On the Crown case, the men then spent from then until midnight in each other’s company performing surveillance and/or otherwise planning the robbery later that evening.
Police undertook a cloud extraction from Mr Tadrosse’s telephone from 27 April to 2 May 2022. That revealed that at 12:41pm on 28 April 2020, shortly prior to Mr Tadrosse leaving his home to meet up with Mr Stephen, he telephoned Smile Concepts, which is a cosmetic dentist located in Sydney. He had an approximately eight minute conversation with a representative named “Sylvie” about dental implants. That telephone conversation was recorded. I was provided with the transcript of that conversation for the purpose of this pre-trial ruling and the recording was played in court.
There is no real dispute on Mr Tadrosse’s part that as of that date he was in financial difficulty.
During the conversation, Mr Tadrosse enquired about the cost of “all-on four implants” and was quoted a base price of $16,000 “per arch”. He did not seem to balk at that price and went on to ask details about the timing of the procedure. He was informed that the price would vary depending on the material used and that porcelain teeth would be more expensive than plastic teeth.
At one stage, he says to the receptionist “let me have a little think about, you’re the first person I’ve called …”. He later said he would get back to them in a day or two.
As for timing, Mr Tadrosse stated that he wanted to get the implants done before Christmas. When the representative offered an appointment the following day, 29 April 2020, Mr Tadrosse stated, “No, it can’t be tomorrow, it’ll have to be next week.” He was told that the procedure could be completed before Christmas over multiple sessions. At the conclusion of the call, Mr Tadrosse said, “I will call you back mate”. He then gave the representative his email address.
In the Crown Case Statement there is reference to Mr Tadrosse calling Smile Concepts again a few minutes later at 12:58pm. That call only lasted 38 seconds. There is no recording of that call, and it is unknown what that conversation concerned.
In written submissions dated 15 July 2025, Mr Tadrosse objected to the call pursuant to ss 55 and 137 of the Evidence Act 1995 (NSW). It was submitted that the evidence’s probative value is outweighed by the danger that the jury will attribute to the evidence a significance it does not have. This was based on the contention that there was no obvious connection between the call and the alleged offences that night, further to their temporal proximity.
It was submitted that the probative value of the evidence was low because:
The recording is of poor quality, and it is sometimes difficult to understand what was said by Mr Tadrosse;
The evidence of the searches and calls is limited to the days around the alleged offence, namely 27 April to 2 May 2020. It is unclear whether Mr Tadrosse made similar searches or calls relating to dental implants at an earlier or later point;
Considering the substance of what was said during the call, Mr Tadrosse said he wished to get the implants before Christmas, which was eight months later. It was submitted that this does not suggest any urgency or imminence;
Mr Tadrosse did not take up the offer of an appointment the following day and ultimately did not make an appointment;
Mr Tadrosse was “obviously price conscious” during the call; and
There is no recording of the second call with Smile Concepts. It is therefore unknown whether Mr Tadrosse booked an appointment, declined to book an appointment or merely sought more information.
It was submitted that although Mr Tadrosse states during the conversation, “[y]ou’re the first person I’ve called”, this call was not the first time he considered getting dental implants because he told the receptionist that he had plans to do it in Mexico. He may have been investigating this procedure prior to the phone call. It was submitted that the evidence only had limited utility in contributing to proof that Mr Tadrosse expected a windfall of money soon.
It was accepted that there was a temporal connection between the call and the alleged offending giving the evidence some relevance, but it was submitted that the probative value is low due to this absence of evidence before and after Mr Tadrosse’s call to Smile Concepts. This low probative value was said to be outweighed by the prejudice that would be caused should the jury attribute to the evidence a significance it does not have.
It was not submitted by Ms Avenell that there were competing inferences that could be drawn from the call. Rather, it was submitted that the evidence had limited probative value, and that unfair prejudice may be caused by relying on this piece of information in isolation.
The Crown relied on Mr Tadrosse’s conversation with the Smile Concepts representative as evidence he expected that he would receive sufficient funds to afford this expensive dental treatment. Although the conversation suggests that Mr Tadrosse had money as opposed to was expecting it, it is contended that this is inconsistent with the evidence that Mr Tadrosse had insufficient funds to even order an Uber the very next morning, as explained below.
On this basis, the Crown contended that the call to Smile Concepts is relevant because it is capable of establishing that Mr Tadrosse expected to have sufficient funds for this expensive dental treatment. This relevance is confirmed by the fact that the conversation is on the morning of the date of the offence. The Crown submitted that hypothesising about other sources of money that Mr Tadrosse may have expected to received is to “miss the temporal connection between the call, the offence and Tadrosse’s parlous financial state”.
The Crown also emphasised the importance of the representation, “[y]ou’re the first person I called”, and that the quoted price of $16,000 did not appear to deter Mr Tadrosse. Reliance was placed on the decision of R v SJRC [2007] NSWCCA 142 in which James J (Rothman and Harrison JJ agreeing) explained (at [38]-[39]) that competing inferences to be drawn from potential evidence ought to be put to one side when considering probative value.
The first question is whether the evidence is relevant in the sense that it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Evidence Act. If the evidence is not relevant, that is the end of the matter: Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at 653 [6]; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (“IMM”).
It was accepted on behalf of Mr Tadrosse that the evidence had relevance given its timing and I am satisfied that is the case.
The nub of the application is that the evidence should be excluded under s 137 of the Evidence Act which provides that 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.” “Probative value” of the evidence is defined in the Dictionary to the E**vidence Act as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
The term “unfair prejudice” is not defined in the Evidence Act. It has been held that the danger of “unfair prejudice” within the meaning of s 137 of the Evidence Act means a risk that the evidence would be misused by the jury in some unfair way: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]; IMM at [44], [52]. In Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, Gleeson CJ observed at [22] that “unfair prejudice” “lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use.” In doing so, his Honour referenced the decision of McHugh J in Papakosmas v The Queen at [91]-[97].
The High Court observed the following in The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 in this regard at [73] (footnote omitted):
“… ‘unfairly prejudicial’ in s 135 and ‘unfair prejudice’ in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.”
I am satisfied that the evidence has probative value. On the Crown case Mr Tadrosse was in poor financial circumstances. In those circumstances, the fact that only hours before he embarked, on the Crown case, on a criminal enterprise to rob the Salibas of a large amount of money, he was making enquiries about expensive dental work is consistent with him anticipating a windfall in the near future.
Although it is to be accepted that there may be other competing inferences to be drawn from the conversation, the question of competing inferences are to be put to one side for the purposes of assessing probative value under section 137 of the Evidence Act: R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at [196] and R v Tortell (No 5) [2019] NSWSC 1665 at [33].
As for the question of unfair prejudice, I have considered the submission that the unfair prejudice is the risk that the jury will place disproportionate weight on this evidence given its timing. I have considered this risk but am satisfied that any prejudice can be cured by directions that I would give.
I am satisfied that the evidence is relevant and admissible.
To some extent the relevance of these recordings turns on Mr Tadrosse’s movements over the previous day and early morning.
On the Crown case, Mr Tadrosse’s covert service was in Cherrybrook/West Pennant Hills area at various times from approximately 4:16pm on 28 April 2020 until 12:24am on 29 April 2020 including between 11:51pm on 28 April to 12:24am on 29 April.
Between 12:31am and 1:29am on 29 April 2020, Mr Tadrosse’s covert phone service was in Pennant Hills, Epping, Artarmon, Cammeray/Narmbur/Neutral Bay, North Sydney, Woolloomooloo South, Kings Cross, Neutral Bay, Beecroft, North Baulkham Hill and Kellyville/Annangrove/Annagrove Park/Dural area.
On the Crown case, Mr Tadrosse’s covert service and Mr Stephen’s covert service exchanged the following calls in the early hours of 29 April 2020:
At 12:19am, call from Mr Tadrosse to Mr Stephen for 36 seconds;
At 12:21:09am, call from Mr Stephen to Mr Tadrosse for 18 seconds;
At 12:21.39am, call from Mr Stephen to Mr Tadrosse for 8 seconds;
At 12:31am, a missed call from Mr Stephen to Mr Tadrosse;
At 1:24am, call from Mr Tadrosse to Mr Stephen for 11 seconds;
At 1:30am, two missed calls from Mr Stephen to Mr Tadrosse;
At 1:31am, call from Mr Stephen to Mr Tadrosse for 40 seconds;
At 1:36am, call from Mr Tadrosse to Mr Stephen for 1 minute and 20 seconds;
At 1:40am, call from Mr Tadrosse to Mr Stephen for 7 seconds;
At 1:41am, call from Mr Stephen to Mr Tadrosse for 2 minutes and 45 seconds;
At 1:54am, call from Mr Tadrosse to Mr Stephen for 30 seconds;
At 2:03am, call from Mr Tadrosse to Mr Stephen for 1 minute and 42 seconds;
At 2:17am, call from Mr Tadrosse to Mr Stephen for 2 minutes and 13 seconds;
At 2:24am, a missed call from Mr Stephen to Mr Tadrosse;
At 2:25am, call from Mr Stephen to Mr Tadrosse for 41 seconds;
At 2:52am, call from Mr Stephen to Mr Tadrosse for 17 seconds; and
At 3:25am, call from Mr Tadrosse to Mr Stephen for 38 seconds (last contact between the phones until 12:25pm).
Cellebrite report extraction of his phone shows that at 4:41:19am, 4:42:26am, 4:43.22am and 4:43:29am Mr Tadrosse made searches in relation to the coronavirus, its symptoms and the coronavirus helpline.
The evidence the subject of the exclusion application is the recording of calls made by Mr Tadrosse starting at 4:44am, to the National Coronavirus Helpline (“the Helpline”). It is to be recalled that as at 29 April 2020 the pandemic was in its very early stages.
Mt Tadrosse provided his name, date of birth, address and phone number to the operator. He said that he was a “bit worried” because he was “starting to get a few symptoms of the virus”, including aching bones, a cough, difficulty breathing and a fever.
After being transferred to a nurse, Mr Tadrosse told her that he had “felt really tired all today” and that “I actually went to sleep and then I woke up in a sweat”. In response to a question as to where he had been recently, Mr Tadrosse answers, “I’ve just been home and just up to the grocery shop”. He also said that he had walked his dog.
The nurse suggested that Mr Tadrosse present to an emergency department due to his breathing difficulties and attend a testing clinic. Mr Tadrosse commented that he was having “a lot of financial difficulties at the moment”. He also mused that he did not know how he could have caught it because “I’ve been into contact with no one really, I wash my hands regularly”. He is then asked for his postcode to assist in finding a clinic to which he responds “is there any way you could email because there is no way (inaudible). … Ah I thought that you are going to send me some information or…”. This call cut out shortly after this.
Mr Tadrosse then called the Helpline again at 5:03am. The reason for the second call is unclear. He repeated that he had woken up sweating “just now”. He then provided all of his personal details for a second time including his name, date of birth, postcode, address, and mobile telephone number. He asked about which hospital he should go to and was told that he would be required to isolate for fourteen days. Mr Tadrosse did not take up any of the offers of an ambulance or attending a hospital, thanked the operator for her help and ended this second call.
Mr Tadrosse does not object to the evidence that Mr Tadrosse gave his name, date of birth, address and mobile number during his calls to the Helpline. However, it is contended on his behalf that the Crown cannot rely on these calls as evidence that Mr Tadrosse was lying to create an alibi that he was home at the time of the offences. It was submitted that the probative value of Mr Tadrosse’s statements during the calls is outweighed by the danger the jury will misuse the evidence. Six submissions were made in this regard.
First, it was submitted that there is no evidence that Mr Tadrosse was advised that the call was being recorded. As senior counsel for Mr Tadrosse clarified in oral submissions, this goes to whether Mr Tadrosse was creating an alibi as he would only be doing so if he knew or expected that a record would be made of what he said.
Secondly, it was submitted that there was no evidence that Mr Tadrosse was being untruthful when discussing his asserted symptoms, including his statement that he had just woken up in a sweat. As counsel for Mr Tadrosse submitted before me, he could have been asleep prior to making the call, even for a relatively short time. Alternatively, it was submitted that the jury could only consider that Mr Tadrosse was lying if they accepted the Crown case that he was not at his residence that night, which, it was contended, is circular reasoning.
Thirdly, Mr Tadrosse only raised the issue of his movements that day in response to a specific question from the operator. This was submitted to be inconsistent with a preconceived plan to provide a false account. Further, due to the Public Health Orders in place at the time due to Covid-19, it was contended that it is unsurprising that Mr Tadrosse would not admit he had been breaching these restrictions.
Fourthly, after the nurse suggested that Mr Tadrosse present to Sydney Hospital or Sydney Eye Hospital for testing, Mr Tadrosse looked up these hospitals at 5:10am and 5:11am. He looked up the Sydney Eye Hospital again at 1:01pm. It was put on Mr Tadrosse’s behalf that this suggests his call was legitimate.
Fifthly, it was submitted that the evidence could not distinguish between consciousness of guilt for murder and wounding as against some lesser offence, including the offence which was the subject of the alleged joint criminal enterprise.
Finally, it was submitted that Mr Tadrosse’s statement that he was having financial difficulties does not assist the argument that the Crown already made based on Mr Tadrosse’s bank accounts.
The Crown confirmed that reliance is placed on these calls as evidence of consciousness of guilt. The Crown case is that Mr Tadrosse created a false alibi to avoid his liability for the offences. Mr Tadrosse’s statement during the call that he had been asleep is said to be inconsistent with his known movements that night, including taking a taxi to Cherrybrook at 2:05am and returning to his home at Potts Point at 3:06am.
Further, Mr Tadrosse’s statement that he has “felt really tired all day” was inconsistent with Mr Tadrosse’s extensive movements across Sydney over the previous more than 12 hours.
The Crown submitted that the evidence does not need to discriminate between murder or manslaughter or principal or secondary liability. Instead, the Crown argued that the calls to the Helpline could be admitted as evidence that Mr Tadrosse knew that there had been acts of violence committed that night and wanted to hide his involvement in that incident as the principal or secondary party. The Crown cited Edwards v R [2022] NSWCCA 22 at [102]-[113]; Cavanagh v R; McIvor v R; O*’*Keefe v R [2023] NSWCCA 164 at [181]-[182]; RJ v R [2025] NSWCCA 68.
I am satisfied that this evidence is relevant in that it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Evidence Act. Ms Avenell did not ultimately contend otherwise given its timing.
Again, the nub of the application is that the evidence should be excluded under s 137 of the Evidence Act.
I am satisfied that the evidence has probative value. On the Crown case, Mr Tadrosse had only shortly arrived home, had left again and had recently spoken to Mr Stephen on the phone. Although, as Ms Avenell contended, it is technically possible that Mr Tadrosse may have fallen asleep for a short time prior to these calls, that is ultimately a question for the jury. I am required to assess the probative value of the evidence at its highest.
I do not consider the fact that there is no evidence that Mr Tadrosse knew that the call would be recorded detracts from the probative value of the call. Mr Tadrosse gives all of his identifying material not once but twice. It is unclear why he made the second call and provided all of that information again. One explanation could be to make doubly sure that the alibi was in place. As for not knowing that it would be recorded, Mr Tadrosse twice asks whether something can be emailed to him, possibly so that he could have documentary confirmation of the call.
I have considered the submission that Mr Tadrosse does not volunteer the alibi from the outset but, rather, provides it in response to a specific question. But, again, taking the evidence at its highest, the evidence is capable of being accepted by the jury as the creation of a false alibi.
I have considered the submission that Mr Tadrosse’s subsequent search of local hospitals suggests his call was legitimate. There is no evidence that he subsequently presented to any hospital. Again, this is a submission that can be put at the trial and it may detract from the Crown submission to some extent, but that is a matter for the jury.
I accept that there is other evidence that Mr Tadrosse was in financial difficulties and if that was the only aspect of this conversation relied upon by the Crown it would not have sufficient probative value. But it is ancillary to the main purpose for which the Crown relies upon this evidence which is the creation of a false alibi.
Finally, I have considered the submission that the evidence is not capable of proving consciousness of guilt of the offences charged as the evidence could not distinguish between consciousness of guilt for murder and wounding as against some lesser offence, including the offence which was the subject of the alleged joint criminal enterprise. Before the Crown could rely on these calls as evidence of the creation of a false alibi, the jury would be directed that they would need to be satisfied, inter alia, that the statements were not true, that they were deliberately untrue (as opposed to the result of mistake or confusion), that they relate to a material issue in the trial, that the lie was told because Mr Tadrosse realised that the truth could reveal his guilt in the charged offences and that the statements have been clearly shown to be a lie by an admission of the accused or by other evidence. The jury would also be warned that people can lie, or seek to conceal things, for many reasons, not just because they are guilty of the crime charged.
It is well established that the lie must pertain to the wrongdoing the subject of the charge as opposed to some other wrongdoing. The issue can be complicated when an offender is charged with multiple offences. In R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 the Victorian Court of Appeal observed the following on this issue:
“[74] It is necessary too to bear in mind the directions which a trial judge must give concerning evidence of post-offence conduct which is relied on as establishing consciousness of guilt of the offence charged.
[75] To begin with, the term ‘the offence charged’ was described in Woolley as an obvious and usually convenient way of relating the post offence conduct to the material wrongdoing as opposed to some other wrongdoing. As was said, it would be fanciful to make a jury’s resort to evidence of consciousness of guilt of a particular offence depend upon whether the accused had a consciousness of guilt of the particular offence as opposed to unlawful conduct in which the accused has engaged. Consequently, juries may be directed in terms of whether evidence of lies or other post-offence conduct demonstrates a consciousness of guilt ‘of the offence charged’. But it will often be helpful for a judge to add an explanation to the jury that reference to ‘the offence charged’ is a convenient way of saying that the accused had a consciousness of the alleged wrongful conduct which constituted the offence charged rather than a consciousness of a specific crime as it is known to the law. (Footnotes omitted.)
…
[78] Trials which concern a one count presentment with lesser included offences, or a multiple count presentment or a case where the evidence adduced to prove a particular charge discloses the possible commission of other offences all raise the question of whether the post offence conduct relates to a particular offence charged or to ‘other offences’. Accordingly, in such cases the jury may have to be alerted to the fact that, before they can treat the post-offence conduct or lies as proof of guilt of the offence they are then considering, they must be satisfied, having regard to all the evidence, that a consciousness of guilt of such ‘other offence’ does not provide a possible reasonable explanation for the lies.”
(Emphasis added.)
In place of the phrase “the charged offence”, which in this case is, inter alia, murder, the Crown has specified “acts of violence committed that night” and that Mr Tadrosse “wanted to hide his involvement in that incident as the principal or secondary party”. I am satisfied that, consistent with established principles, the consciousness of guilt would have to be of his wrongful conduct which constituted the offence of murder. It is not necessary for the precise wording of that direction to be finalised now in order to rule on whether this alleged lie can be admitted into evidence. I am satisfied that it is capable of being relied upon as consciousness of guilt and I will hear further submissions on the precise scope of the direction at the appropriate time.
I am satisfied that the alleged has probative value and that any perceived unfair prejudice could be cured by the extensive lies direction that is routinely given in such cases derived: Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63.
I am satisfied that the evidence is relevant and admissible.
Accordingly, I make the following orders:
Mrs Shahidy Saliba is to give evidence by audio-visual link.
That a view be held in this matter on a date to be advised.
The statements by Mr Tadrosse to the receptionist at “Smile Concepts” on 28 April 2020 are admissible.
The statements by Mr Tadrosse to the Coronavirus Helpline on 29 April 2020 are admissible.
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Publication restriction removed
(1993) 178 CLR 193
(2001) 208 CLR 593
(2016) 257 CLR 300
(1999) 196 CLR 297
(2006) 16 VR 26
(2001) 206 CLR 650
(2018) 266 CLR 56