Supreme Court New South Wales Medium Neutral Citation: R v Chamma; R v Hicks (No 1) [2023] NSWSC 558 Hearing dates: 24 May 2023 Date of orders: 26 May 2023 Decision date: 26 May 2023 Jurisdiction: Common Law Before: McNaughton J Decision: In relation to the Accused Chamma, the Court makes the following orders: (1) The fire pit evidence is admissible. (2) The telephone intercept evidence is admissible. Catchwords: EVIDENCE – criminal trial – admissibility of evidence – section 137 Evidence Act 1995 (NSW) – whether the probative value of evidence is outweighed by danger of unfair prejudice – evidence of burning clothes in firepit – evidence of telephone intercept – no danger of unfair prejudice – evidence admissible Legislation Cited: Crimes Act 1900 (NSW) ss 18, 98 Evidence Act 1995 (NSW) ss 88, 137, 192A Cases Cited: Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v SJRC [2007] NSWCCA 142 R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520 Webb v R; R v Webb [2012] NSWCCA 216; (2012) 225 A Crim R 550 Category: Procedural rulings Parties: Rex Samir Chamma (Accused) John Hicks (Accused) Representation: Counsel: S Hughes (Crown) A Norrie (Chamma) T Anderson SC (Hicks) Solicitors: Solicitors for Public Prosecutions (Crown) Ross Hill & Associates Lawyers (Chamma) Andrew Scali Solicitors (Hicks) File Number(s): 2021/319239 (Chamma) 2021/354317 (Hicks) Publication restriction: No publication until the conclusion of the trial. JUDGMENT 1. Mr Samir Chamma ("the Accused Chamma") is to stand trial with Mr John Hicks ("the Accused Hicks") on 29 May 2023 for the following alleged offences: 1. One count of murder in contravention of s 18(1)(a) of the Crimes Act 1900 (NSW); 2. One count of robbery with arms and wounding in contravention of s 98 of the Crimes Act. 1. It is anticipated that the Crown will adduce the following evidence in its case against the Accused Chamma: 1. Evidence of clothing, allegedly including a white Gant polo shirt, being burned ("fire pit evidence"); 2. Evidence of a telephone call between the Accused Chamma and Mr Nathan Yeend on 24 December 2020 at 10:59:37 ("telephone intercept evidence"). 1. The Accused Chamma seeks a ruling pursuant to s 192A of the Evidence Act 1995 (NSW) to have this evidence excluded under s 137 of that Act. Brief facts 1. In order to consider the arguments in favour of exclusion of the fire pit evidence and the telephone intercept evidence made on behalf of the Accused Chamma, it is necessary to place the contested evidence in the context of the case as a whole. The following factual summary is largely taken from the Crown Case Statement. Overview 1. At 10:06pm on Sunday 15 November 2020, a red Honda Accord motor car bearing registration plates ending in 54Q ("the red Honda car") drove slowly along Wentworth Avenue in Toongabbie, past the home of Warwick Hunter ("the deceased") and onto Budgeree Road. Driving the car was the Accused Chamma. The Accused Hicks and Mr Jonathon Salamie were passengers within the car. 2. The red Honda car completed a U-turn in Budgeree Road before coming to a stop on Wentworth Avenue, directly opposite the deceased's home. The car's occupants got out. The Crown alleges that by that stage, those three men had reached an understanding or arrangement amounting to an agreement between them that they would enter the deceased's home and rob, or assault with intent to rob, the deceased of money, prohibited drugs or other valuable property. 3. The Accused Chamma, the Accused Hicks and Mr Salamie forced entry into the deceased's dwelling house through its front door. The Crown alleges that the Accused Hicks or the Accused Chamma or both of them were armed with a bladed weapon. On seeing the three men enter his home, the deceased attempted to flee. He was punched by one of the men and fell to the floor. As he attempted to get up from the floor the deceased was stabbed. He continued to try to escape and was stabbed several times. An unknown quantity of money and/or valuables belonging to the deceased were stolen. 4. Bleeding from the stab wounds, the deceased walked from his home and yelled for help. A neighbour called the police, but the deceased died from his stab wounds on the ground where he had collapsed shortly after the arrival of the police and ambulance. Background 1. In November 2020, the Accused Chamma was living between Gardner Street in Rooty Hill and Jersey Road in South Wentworthville. He was using a mobile telephone service ending in 301, subscribed in the name of "Vishaal LAL" of a Belmore address. On 15 November 2020, the Accused Hicks was using a mobile service ending in 636, subscribed in the name of his mother, Patricia Smith. Mr Salamie was using a mobile service ending in 046, subscribed in his name. 2. The deceased was 50 years old at the time of his death. He lived alone at Wentworth Avenue, Toongabbie. The premises consisted of a three-bedroom detached brick house situated on the corner of Wentworth Avenue and Budgeree Road, Toongabbie. The front entrance consisted of a lockable metal security door and a lockable wooden door. There were no Closed-Circuit Television (CCTV) cameras attached to that house. Neighbouring premises on Wentworth Avenue had CCTV cameras, one of which captured part of the footpath and roadway at the front of the deceased's home. 3. On Sunday 15 November 2020, the deceased spent part of the day with his wife, Ms Premila Devi, shopping, eating and visiting friends. Ms Devi did not reside with the deceased, but they regularly socialised and spent time together. 4. At about 3:05pm, Ms Devi drove her vehicle (a silver Subaru Forester) to the deceased's home. Ms Devi went inside for a short period before she and the deceased left in her vehicle. Over the next few hours, Ms Devi and the deceased did some shopping at Prospect, checked a property at Blacktown and went to a friend's house at Pendle Hill. 5. At about 3:30pm, Mr Salamie attended Toongabbie Hotel by himself. He consumed several beers and played the poker machines. Mr Salamie was wearing a black t-shirt with a gold motif on the front, green three-quarter length pants, black shoes, a black Adidas shoulder bag, black sunglasses, and he was carrying a black baseball cap. 6. At 4:27pm, the Accused Chamma was in the area of Doonside. 7. At 4:40pm, Mr Salamie left the Toongabbie Hotel and caught a train to Pendle Hill Railway Station. He went to the Pendle Hill Hotel, drank a few beers, and played the poker machines. 8. At about 4:50pm, the Accused Chamma drove the red Honda car to the Doonside Hotel at Graham Street, Doonside. The Accused Chamma was the only occupant of the vehicle, which was registered to Ms Jasmine Taylor of Doonside. 9. Ms Taylor asserts that the red Honda car had been borrowed for a three-day period in November 2020 by the Accused Chamma, a friend of her brother's, and that he was the last person who had possession of her car. 10. The Accused Chamma entered the hotel and went to the poker machine room. He met with a person ("Witness G"). The Accused Chamma appeared on CCTV footage from within the hotel wearing a white collared Gant branded t-shirt, dark Adidas shorts with the 3-stripe design on either side, red shoes, a white Champion branded baseball cap and he was carrying a black single strap shoulder bag and mobile phone. 11. At about 5:30pm, the Accused Chamma and Witness G left the hotel. The Accused Chamma drove away in the red Honda car with Witness G seated in the front passenger seat. Between about 5:30pm and 8:00pm, the Accused Chamma accompanied by Witness G drove in Doonside, Blacktown and Toongabbie. 12. At 5:42pm, Ms Devi and the deceased returned to the deceased's home. The deceased could not locate his house keys and so was not able to enter his home. Ms Devi left and drove to a friend's house nearby for a visit. When Ms Devi arrived at her friend's house, she located the deceased's house key in her car. 13. At 5:51pm, Mr Salamie left the Pendle Hill Hotel and walked along Wentworth Avenue towards the deceased's home. He was captured on CCTV footage walking along Wentworth Avenue outside the address of a house near the deceased's home in Wentworth Avenue, Toongabbie. 14. At 6:06pm, Mr Salamie received a Service Provider Usage Alert Short Messaging Service (SMS) on his mobile service ending in 046, which connected with a Cell Tower at Pendle Hill. 15. At 6:12pm, Ms Devi and her friend returned to the deceased's home. Ms Devi saw the deceased in the front garden of the house and gave him his keys. Ms Devi saw that there was a male with the deceased who she did not know. The deceased told Ms Devi that this person was a cousin of "Mohammed". Ms Devi described the unknown male as "a Muslim guy with a big black beard with a fair complexion, not too dark, strong muscly build." She said he was wearing a white cap, a black t-shirt and black pants. It is alleged on the Crown case that the male was Mr Salamie. Ms Devi and her friend left the location. The deceased and Mr Salamie were at the location when she left. 16. Ms Devi identified the deceased as having in his possession on 15 November 2020 two bags; one black bag and a small red bag, and that the black bag contained an amount of cash from which the deceased removed one bundle on the afternoon of 15 November 2020, before the pair returned to the deceased's home. 17. As stated above, between about 5:30pm and 8:00pm, the Accused Chamma accompanied by Witness G, drove in Doonside, Blacktown and Toongabbie. At some time while driving, the Accused Chamma asked Witness G if he could collect a mate from a place at Toongabbie. He said that his mate had told him he was "with some guy who is cashed up", and that he wanted to check it out. 18. At 7:51pm, Mr Salamie made a phone call from his mobile service ending in 046 to the deceased's mobile service ending in 068. The duration for this call was zero seconds and was not answered. Mr Salamie's mobile service connected with a Cell Tower at Pendle Hill. First visit by the Accused Chamma to the vicinity of the deceased's home ("first visit"): 1. At 7:54pm, the red Honda car travelled on Wentworth Avenue, Toongabbie towards the deceased's home. The vehicle stopped on the roadway and parked about 30 metres from the deceased's house. 2. Mr Salamie walked from the front area of the deceased's home towards the red Honda car, walking around to the driver's side door. After a short period, the Accused Chamma got out of the front driver's side of the car, and Witness G got out of the front passenger side. There is CCTV footage relating to this visit. 3. A brief conversation occurred, and the Accused Chamma, Mr Salamie and Witness G walked towards the front of the deceased's home. 4. At 8:18pm, the Accused Chamma, Mr Salamie and Witness G walked from the deceased's home and got into the red Honda car. The Accused Chamma got into the front driver's side, Witness G into the front passenger seat and Mr Salamie entered the rear passenger side seat. 5. The red Honda car made a U-turn on Wentworth Avenue and drove away in the direction of Toongabbie Railway Station. 6. On leaving the house of the deceased, Mr Salamie told the Accused Chamma and Witness G that, "The guy is cashed up. I saw a bundle of cash in his pocket and he must have money; did you see the chains he had? I was just walking past the place and the guy was acting all weird and invited me inside." The Accused Chamma said "Well we're coming back here then. That's our next job." Witness G understood this to mean that the Accused Chamma wanted to go back to the deceased's house and rob him of money and any other valuables. Witness G directed the Accused Chamma to drop him to his house. 7. As the group were driving back to Witness G's house, the Accused Chamma told Witness G to, "Call Hicksy and tell him I will pick him up", stating that he was unable to do it as he was driving, and his phone was flat. Witness G phoned the Accused Hicks as instructed and said to the Accused Hicks "Samir said he is going to come pick you up." The Accused Hicks said to him "They are going to go see this guy", and the Accused Chamma interrupted the phone conversation to tell Witness G "Don't say nothing more, just tell him I'm going to come pick him up." Witness G did as he was told to do and was then dropped to a street near his house. When he left the red Honda car, Mr Salamie got out of the back seat, and into the front passenger seat of the car. 8. At 8:36pm and 8:50pm, Mr Salamie's mobile service ending in 046 connected with a telecommunications tower at Bert Saunders Reserve, Doonside. McCulloch Street, Blacktown is on the border of Doonside and a short distance from Bert Saunders Reserve. 9. At 8:40pm, the red Honda car drove along McCulloch Street, Blacktown before turning into London Street, where it parked. Witness G exited the vehicle. The vehicle left the street shortly afterwards. At 8:54pm, the red Honda car travelled through Rooty Hill and entered Gardner Street. 10. At 9:04pm, the Call Charge Records for the Accused Hicks' mobile service ending in 636 indicated that he made a voice call to an associate's mobile service ending in 850. At this time the mobile service of the Accused Hicks was connected to a Cell Tower at Seven Hills. Shortly after this, the Accused Chamma and Mr Salamie arrived at Dale Street, Seven Hills in the red Honda car. They picked up the Accused Hicks and drove off in the red Honda car towards Toongabbie. Second visit by the Accused Chamma to the vicinity of the deceased's home ("second visit"): 1. At 10:04pm on Sunday 15 November 2020, the red Honda car travelled along Station Road, Seven Hills towards Toongabbie, and then on Wentworth Avenue, Toongabbie, towards the deceased's home. The Accused Chamma is alleged to have been driving the vehicle at this time and Mr Salamie and the Accused Hicks are alleged to have been in the vehicle as passengers. 2. At 10:06pm, the red Honda car drove slowly past the deceased's home, completing a U-turn in Budgeree Road before coming to a stop on Wentworth Avenue directly opposite the deceased's home. There is CCTV footage relating to this visit. Murder of Warwick Hunter 1. At 10:11pm, the Accused Chamma, Mr Salamie and the Accused Hicks exited the red Honda car and walked towards the front of the deceased's home. The Accused Chamma and/or the Accused Hicks were armed with a knife at this time. One of those knives was contained within a homemade sheath constructed from two cardboard toilet paper inner rolls stuck together to hold the knife. 2. At this time, the deceased was home alone listening to loud music, as he often would. The deceased was wearing no shirt, red shorts and yellow-coloured shoes. 3. The Accused Chamma forced entry to the deceased's home through the front door and all three men entered with the intention to rob the deceased of drugs and money. 4. The deceased saw the three men in his home and attempted to escape from them. Of the men, the Crown alleges that probably the Accused Hicks ran towards the deceased and punched him, causing him to fall to the floor. The deceased attempted to get up off the floor and was stabbed. The deceased continued to try to escape and was stabbed several more times. The Accused Chamma, Mr Salamie and the Accused Hicks stole an amount of money and/or other valuable property belonging to the deceased and fled the premises. 5. At 10:14pm, the Accused Chamma, Mr Salamie and the Accused Hicks ran from the front of the deceased's home towards the red Honda car and all three men entered it. The red Honda car, driven by the Accused Chamma, sped off towards Toongabbie Railway Station without its headlights turned on. 6. At 11:07pm, the red Honda car was driven on McCulloch Street, Blacktown. The Accused Chamma, the Accused Hicks and Mr Salamie were within the car at that time. At 11:28pm, the red Honda car was at the Caltex Service Station, Vardys Road, Kings Park. 7. At around 2:00am on Monday 16 November 2020, the red Honda car drove along London Street, Blacktown and parked near the corner of McCulloch Street. The Accused Hicks got out of the front passenger seat of the vehicle and ran towards McCulloch Street. A short time later, the Accused Hicks ran back to the vehicle and the Honda drove away. Arrival of police and paramedics 1. Sometime after 10:00pm, a person was heard yelling for help at the front of a unit at Budgeree Road. The unit's occupant, upon hearing the yelling, went outside and saw the deceased lying on the ground. A significant amount of blood could be seen on the deceased's chest, torso and on the ground around the deceased. The deceased was still breathing, although his breathing was shallow. The witness' stepson came outside and was instructed by the witness to call an ambulance. 2. At about 10:35pm, police arrived at Budgeree Road, Toongabbie to find the deceased lying unconscious on the footpath with what appeared to be multiple stab wounds to his body. The deceased was wearing shorts but no shirt. The paramedics were in attendance and preparing to perform CPR on the deceased. Police observed a blood trail leading from where the deceased lay, leading south along Budgeree Road. 3. Police and paramedics initiated the treatment of the deceased, however on commencing CPR a large volume of blood began to issue from the back of the deceased, and CPR was ceased. The wounds were covered, and CPR recommenced by both police and paramedics. After a couple of minutes, the deceased was pronounced dead by paramedics, treatment ceased and the deceased remained at the scene until about 2:05am, when his body was transported to the morgue. 4. A crime scene was established, and investigators established a Strike Force to investigate the murder of the deceased. Cause of death 1. On 17 November 2020, pathologist Dr Elsie Burger conducted an autopsy on the deceased and found that the cause of death was stab wounds to the chest that penetrated the deceased's right lung. Dr Burger also opined that the post-mortem toxicology findings included the presence of methylamphetamine in a "potentially toxic range". Crime scene examination 1. On 15 November 2020, police observed a trail of blood from the position of the deceased outside Budgeree Road, leading west towards the intersection of Wentworth Avenue, Toongabbie. The blood trail was observed to lead to the rear entrance of the deceased's home. 2. On reaching the deceased's home, police officers gathered in the front yard of the premises and heard an audible bang from within. The property was secured as a crime scene. The front door of the property was observed to be slightly ajar, and the lights on within. 3. At around 11:00pm, specialist police entered the house. No person was located within the house at that time. At about 6:30pm on Monday 16 November 2020, an investigative search was conducted of the premises of the deceased's home under a crime scene warrant. The search was recorded electronically, and exhibits seized. 4. The frame and lock of the front security door was damaged. The striker plate was located on the front path. Blood droplets and blood smears were located in various areas within the deceased's home, in particular within the kitchen/dining area. Subsequent examinations indicated this was the deceased's blood. 5. A cardboard object was located underneath the dining table inside the deceased's home. It was a homemade sheath constructed to hold a knife. The sheath consisted of two cardboard toilet roll inners taped together and folded to hold a knife. The item was seized for examination. 6. A drop of the deceased's blood was located on the cardboard sheath along with several fingerprints. Subsequent testing revealed the fingerprints belonged to the Accused Chamma. Further examination of the item located DNA matching the Accused Chamma and the Accused Hicks on the cardboard rolls. Post-offence conduct alleged by the Crown to be evidence from which a consciousness of guilt can be inferred The Accused Chamma 1. The Accused Chamma travelled home on 16 November 2020 and proceeded to burn clothing in a fire pit in his backyard, recording his actions on a Snapchat video as he did so. The articles of clothing burnt included a white Gant shirt. 2. Early in the morning of 16 November 2020, the Accused Chamma travelled to the house of a friend, Mr Nathan Yeend, in the red Honda car. He told Mr Yeend that "he and John Hicks fucked up in Toongabbie" and "someone died". 3. Sometime between 15 and 20 November 2020, the Accused Chamma also had a conversation over the telephone with his mother, Ms Susan Chamma, concerning recent events. He told Ms Chamma that "it was meant to be a run through, but it went wrong." He did not detail what was meant by it having gone wrong. In a further conversation with Ms Chamma a few days later, the Accused Chamma confirmed that he was definitely present at the murder. 4. Witness G is anticipated to state that sometime between 10pm and 11pm on 15 November 2020, there was a knock at the front door of his home. He opened the door to see the Accused Hicks, the Accused Chamma and Salamie. The Accused Hicks said he wanted drugs. Witness G thought that the Accused Chamma and Salamie looked like they were in shock. The Accused Chamma said "Johnny [the Accused Hicks] fucked up, he stabbed a bloke". 5. In response, the Accused Hicks said, "I stabbed him in the neck and I stabbed him through the side and it came out his front". 6. At 10:59:37 hours on 24 December 2020, the Accused Chamma received a telephone call from Mr Yeend. This included, from 11:01:18, the following exchange (noting that the portions objected to are underlined): Accused Chamma: I'm like, if he comes over and asks for his money I'll just punch him in the head and say, yeah, alright. Yeend: Yeah, that's it, just, just, just fucking pull out, pull out ya big, ya big sword. Accused Chamma: Nah, last night he's like, aw bro, someone robbed one of the safe houses, blah, blah, blah and the guy took, um one of the boys took a um, ah kidnapped him and um, like grinded his back. I was like, that's alright bra, I stabbed someone over nine grand and he died. Yeend: Haha, hard, hard, hard. Accused Chamma: Ah, what, I was like, yeah. Yeend: You should say, if you don't believe me mate, off ya go, go have a look, Google will tell ya. Accused Chamma: Yeah. 1. The underlined portions are one of the two pieces of evidence the subject of challenge. The Crown alleges that those underlined portions above, considered with all of the other evidence and the fact that the death of the deceased was widely reported before anyone was charged with his death, justify drawing the inference that the Accused Chamma was referring to the stabbing death and robbery of the deceased. 2. About 6:45am on 10 November 2021, the Accused Chamma was arrested at his address at Acacia Avenue in Lake Munmorah. He was taken back to Wyong Police Station where he agreed to participate in a record of interview and was shown three photographs. He was subsequently charged with murder. 3. During the interview, he specifically denied being present at the home of the deceased when the stabbing, death and robbery of the deceased occurred. Evidence tendered on application for the exclusion of evidence 1. On 24 May 2023, a hearing in relation to the application for the exclusion of evidence took place before me. Evidence tendered on the application for the exclusion of evidence by the Accused Chamma was: 1. The affidavit of Ms Catherine Butler affirmed on 18 May 2023 and annexing: 1. The indictment 2. The Crown Case statement dated 26 February 2023; 3. As to the fire pit evidence: 1. Statement of Kym Harvie dated 8 June 2021 – a sales manager (relevantly) for the Gant brand annexing two photographs of the Accused Chamma wearing a white polo shirt (photos taken from the Crown Case statement from when the Accused Chamma was at the Doonside Hotel in the afternoon of 15 November 2020 between 4:50pm and 5:30pm), and a photo of a fire pit with items apparently including a white shirt; 2. Photos of a fire pit/backyard at an address in South Wentworthville; 3. Stills from a Snapchat video of clothing being burnt dated 16 November 2020. 1. Telephone intercept evidence 1. Statement of Nathan Yeend dated 25 January 2022; 2. Typed transcript of telephone call between the accused Chamma and Nathan Yeend on 24 December 2020 at 10:59:37 obtained pursuant to a warrant. 1. Also tendered on behalf of the Accused Chamma was the following: 1. Exhibit 1: Investigators note containing data in relation to the Snapchat Video dated 16 November 2020 at 8:09am, notionally attaching the recording of the video file and noting that it comes from the examination of the handset of the Accused Chamma, from "Chamma Snap Chat Account", and that the recording attached was recorded by police from the handset on 9 March 2021; 2. Exhibit 2: Transcript of telephone call between Nathan Yeend and the Accused Chamma dated 24 December 2020 at 10:59:37 – noting that only the following portion of that call is intended to be adduced by the Crown with the contested parts underlined: Accused Chamma: I'm like, if he come over and asks for his money I'll just punch him in the head and say, yeah, alright. Yeend: Yeah, that's it, just, just, just fucking pull out, pull out ya big, ya big sword. Accused Chamma: Nah, last night he's like, aw bro, someone robbed one of the safe houses, blah, blah, blah and the guy took, um one of the boys took a um, ah kidnapped him and um, like grinded his back. I was like, that's alright bra, I stabbed someone over nine grand and he died. Yeend: Haha, hard, hard, hard. Accused Chamma: Ah, what, I was like, yeah. Yeend: You should say, if you don't believe me mate, off ya go, go have a look, Google will tell ya. Accused Chamma: Yeah. 1. Exhibit 3: First USB containing: 1. The video footage of the Snapchat video; and 2. The audio of the telephone call of 24 December 2020 at 10:59:37. 1. Exhibit 4: Second USB containing a compilation of CCTV footage prepared by police of one hour and four minutes duration, particularly relying on footage taken from: 1. The deceased's home on Wentworth Avenue, Toongabbie on 15 November 2020: 1. Between 7:56pm and 8:18pm (depicting Witness G, Mr Salamie and the Accused Chamma the latter wearing a white short sleeved shirt), and 2. Between 10:08pm and 10:14pm, particularly between 10:11pm and 10:14pm (depicting three men, all apparently wearing dark clothing, one of whom was the Accused Chamma, and none of whom could be seen wearing white clothing); 1. from the Caltex Service Station in Kings Park from 11:28:41pm, including the Accused Chamma apparently wearing dark clothing. 1. The Affidavit of Rashelle Conroy sworn 19 May 2023 was also read to the extent that it relevantly annexed the two statements of Witness G dated 12 May 2021 and 8 September 2021. 1. At the hearing, relevant portions from the two USBs (Exhibits 3 and 4) were played in Court. 2. The Crown tendered the statement of Ms Devi (Exhibit A), the wife of the deceased. Included in the statement at [18] is the following account of events which occurred early in the afternoon of 15 November 2020: "Whilst we were in the car, [the deceased] told me that one of the rings on my hand was his so I gave it to him from my left ring finger. I would describe the ring as blue ruby with white diamonds around it. [The deceased] told me he would give me $940.00 cash for the ring. [The deceased] opened his little black bag, it's not a bum bag just a small black bag with a zipper. I could see that it had heaps of money and papers in it. I could see there were 50's and 100-dollar notes in it. I would estimate it to have $10 000 in it. He gave me some cash for the ring and told me that it was $940.00 but I didn't count it. I told [the deceased] that I would pick him up tomorrow (16th of November, 2020) at 11am, to take him to buy shoes." 1. At [25] of her statement, Ms Devi added: "When I got home I did some things and then I counted the money that [the deceased] gave me for the ring. I realised that [the deceased] only gave me $640.00 not $940.00 […]" Notice of the Defence Case 1. It is relevant to note that the Accused Chamma denies committing the offences but admits to being outside the deceased's premises on 15 November 2020 from about 10:11pm to about 10:14pm, but denies that he entered the premises during that time. He also denies that he was armed and denies knowing that anyone else was armed. Relevant legal principles 1. The relevant legal principles were agreed. 2. Section 137 of the Evidence Act deals with the exclusion of prejudicial evidence in criminal proceedings and provides as follows: 137 Exclusion of prejudicial evidence in criminal proceedings 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. 1. In the Dictionary to the Evidence Act the probative value of evidence is defined to mean: the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. 1. In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, French CJ, Kiefel, Bell and Keane JJ state at [47]: "[T]he requisite probative value of the evidence is not spelled out in s 137. It requires the 'probative value' of the evidence to be weighed against the danger of unfair prejudice to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue." 1. In R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520, Wood CJ at CL, Hulme and Buddin JJ stated the following at [252] concerning the danger of unfair prejudice: "Prejudice argues for exclusion only if there is a real risk of danger of it being unfair […]. This may arise in a variety of ways, a typical example being where it may lead a jury to adopt an illegitimate form of reasoning, or to give the evidence undue weight." (Emphasis in original.) 1. In Webb v R; R v Webb [2012] NSWCCA 216; (2012) 225 A Crim R 550, Johnson J (with whom Macfarlan JA and Beech-Jones J agreed) held at [103] that "it is erroneous to hold that evidence must be 'unambiguous' to withstand rejection under s. 137, noting that it is for the jury to determine what facts should be found: R v SJRC [2007] NSWCCA 142 at [21], [36]-[39], [47]-[49]." (Emphasis in original.) 2. In R v SJRC [2007] NSWCCA 142, Rothman J held (with James and Harrison JJ agreeing) at [49]: "It is not unusual for there to be competing views (each of which may be open) as to the meaning of a statement alleged to be an admission of fact in issue at the trial. I agree with James J that so long as the evidence is capable of bearing the interpretation or giving rise to the inference contended for by the Crown, the fact that there may be other interpretations or inferences available consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice." 1. If there is no real risk that the evidence will be used by the jury in the suggested improper way, then there will be no danger of unfair prejudice and therefore no basis for exclusion. 2. In the exercise of determining whether there will be unfair prejudice, the Court must also consider the extent to which the danger associated with admitting the evidence may be reduced by some other action, including directions to the jury. Fire pit evidence Submissions on behalf of the Accused Chamma 1. First, it is argued that while the footage from the Doonside Hotel earlier in the day of the killing of the deceased on 15 November 2020 shows the Accused Chamma wearing a white shirt, the Crown cannot establish it was the same type of shirt which was later burned in the fire pit the following morning. The highest the prosecution evidence goes is that the shirt in the fire pit "looks to be very similar" to the shirt the Accused Chamma was wearing at the Doonside Hotel. 2. Second, whilst the Accused Chamma appears to be wearing a white shirt on the first visit to the vicinity of the deceased's premises, the CCTV footage does not depict the Accused Chamma wearing any white clothing on the second visit to the vicinity of the deceased's premises proximate to the time of the killing. Rather, it would appear that all three men in the CCTV recording were wearing dark clothing as their outer layer, as they also were later at the petrol station. 3. Third, the public nature of the Snapchat video, and the fact that it was shared and retained, shows a lack of concealment. 4. While the relevant Snapchat video is temporally connected to the time of the killing of the deceased, noting that it was dated 16 November 2020 at 8:09am, it nevertheless: 1. Included a still of persons (not the Accused Chamma) who were present at the time that a fire pit was being used. 2. Was not accompanied by any audio which somehow connected the burning of what is alleged to be a white Gant polo shirt: 1. To the alleged murder of the deceased. 2. To the Accused Chamma (i.e. As an item of clothing which belonged to the Accused Chamma). 1. Included other items which were being burned and which appeared to have no connection at all to the Crown case. 1. There is no evidence that the Accused Chamma was seen with blood on his clothes after the time of the killing of the deceased. 2. The Accused Chamma contends that the fire pit evidence is highly prejudicial to him in that it may be improperly used by the jury to reason that he was burning a white Gant polo shirt to somehow distance himself (via destruction of the said shirt) from the killing of the deceased. It is submitted that the probative value of the fire pit evidence does not outweigh the prejudicial effect it has on the Accused Chamma. Submissions by the Crown 1. The Crown relies on the evidence as showing a consciousness of guilt on the part of the Accused Chamma. 2. The Crown points to the facts including that at 5:28pm on the day of the death, the Accused Chamma was captured on CCTV leaving the Doonside Hotel wearing what appears to be a white Gant polo shirt. At the first visit to the vicinity of the deceased's home at 7:56pm that night, on the Crown case, the Accused Chamma appeared on CCTV footage wearing clothes which are not dissimilar, albeit that footage does not permit a close comparison. At 8:18pm, he appears to be wearing the same clothes. There is no apparent reason for the Accused Chamma to change his shirt between those times. At 8:09am the next day, a white polo shirt, which is in no way distinguishable from those in the earlier footage, was being destroyed. A recording of that was found on the Accused Chamma's phone. 3. The Crown notes that the Accused Chamma makes the point that there was no effort to conceal the video. The Crown submits that "it is the experience of the courts that the foolhardiness and boastfulness of many young men frequently sees items posted on social media which are incriminating." The matters posited by the Accused Chamma as deficiencies or otherwise problematic features of the footage are matters that may be appropriate for the jury to consider. However, neither alone nor combined do they reduce the probative value of the evidence. In relation to the contention that there is no evidence of blood on the Accused Chamma subsequent to the death, it is submitted by the Crown that the evidence does not rule out that some blood was on his clothing. In any event, the realisation on the part of the Accused Chamma that the very appearance of the clothing item might link him to the scene of the death would be an obvious one. 4. The Crown submits that the "improper" use suggested seems to be that the jury would use the evidence to reason towards guilt. That is precisely the manner in which the jury is entitled to use the evidence. 5. The evidence is highly probative. There is no identified unfair prejudice. It is submitted that the evidence should be admitted. Consideration of fire pit evidence 1. First, I am of the view that there is clear probative value in the combination of evidence comprising: 1. The footage from the Doonside Hotel on the day of the killing showing the Accused Chamma wearing a white shirt, 2. The evidence of a white shirt being shown to be worn by the Accused Chamma at the first visit to the deceased's premises on the day of the killing, and 3. The burning of a white shirt the morning after the killing, captured by the Accused Chamma on his mobile phone and shared by way of Snapchat. 1. Although there is no evidence of any blood on the shirt requiring the destruction of the shirt by fire, I agree with the Crown's submission that it would be open to the jury to find that the Accused Chamma may well be concerned to destroy the white shirt because the very appearance of the clothing item might link him to the scene of the killing. The closeness in time of the burning of the shirt, being only a matter of hours after the killing, and less than a day after the Accused Chamma was seen at the deceased's address on the day of the killing wearing a very similar white shirt, is a highly probative aspect of the evidence. That the Accused Chamma was seen to be wearing darker clothes around the time and after the killing does not diminish the probative value of the evidence to any great extent, and will be a matter the jury can consider in the context of the Crown case as a whole. 2. The fact that the burning of the shirt was not concealed (and indeed publicised to an extent) is something the jury clearly can be invited to consider but does not diminish the probative value to any extent, especially when viewed in the context of a curious trend noticed by the Court of young people bragging about various activities they have undertaken (including criminal ones) by way of videoing and posting material to social media. If that trend is not before the jury by way of evidence and/or is not otherwise known to the jury, the lack of concealment/publication is a matter which can be seen to be favourable to the accused. It does not reduce the probative value of the evidence nor does it constitute unfair prejudice. 3. That the video included persons (not the Accused Chamma) who were present at the time that a fire pit was being used, and was not accompanied by any audio which provided any overt connection to the killing of the deceased or to the Accused Chamma, does not diminish its probative value to any real extent, especially when it is remembered that it was recovered from the Accused Chamma's phone, and was attached to his Snapchat account. 4. As to the argument of the Accused Chamma that the Snapchat video also included other items which were being burned and which appeared to have no connection at all to the Crown case, I am not persuaded by this argument. Whilst it is true that the Crown is not relying on any other material being burned as having any connection with the case, that is not the same as contending, as a positive proposition, that the other items have "no connection" with the Crown case. Having examined the still shot from the Snapchat video closely, I agree with the Crown submission that the other material being burned cannot be ascertained. No positive proposition that it had no connection to the Crown case can be made. I agree that the other material being burned can only be seen as neutral. 5. Further, any weaknesses in the evidence linking the white shirt worn by the Accused Chamma on 15 November 2020 with the precise white shirt being burnt the following morning can be pointed out to the jury by counsel and can be the subject of appropriate directions. It is a matter which can be considered by the jury. The weaknesses, such as they are, are certainly not of the quality to undermine the probative value of the evidence to any great extent, or amount to danger of unfair prejudice. The evidence is not such as would elicit an illegitimate form of reasoning, nor, with appropriate directions, would the evidence be given undue weight. The mere fact that evidence supports the prosecution case and is inculpatory of the accused does not amount to unfair prejudice: Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [22] (Gleeson CJ). 6. The probative value of the fire pit evidence is not outweighed by the danger of unfair prejudice to the Accused Chamma and is admissible. The telephone intercept evidence Submissions on behalf of the Accused Chamma 1. The Accused Chamma contends that whilst much of the irrelevant and highly prejudicial material has been removed from the proposed Exhibit, what remains is highly prejudicial to him. The Crown has failed to remove: 1. A reference to the Accused Chamma saying that he would engage in violence towards another person by punching him in the head; 2. A reference to the Accused Chamma associating with another person who appears to be engaged in criminal conduct. 1. Further, and importantly, the telephone intercept evidence includes the Accused Chamma saying that he "stabbed someone over nine grand and he died." 2. The Accused Chamma points to the following matters which diminish the probative value of that evidence, and which show that the evidence is too general in nature, noting in particular: 1. It is temporally disconnected from the time when the deceased was killed, taking place approximately five weeks later; 2. It did not include any reference to when it was that someone was stabbed over $9000 and died; 3. It did not provide any specific reference to the deceased; 4. It did not otherwise provide any connection to the deceased. In this respect, the Crown case does not allege that "nine grand" was taken from the deceased. 1. It is contended that the telephone intercept evidence is "highly prejudicial" in that it may be improperly used by the jury reasoning that the person who is referred to having been stabbed by the Accused Chamma was the deceased. 2. Such reasoning, it is argued, is inconsistent with the Crown case, given that the Crown alleges that "probably" the Accused Hicks stabbed the deceased. As set out above, it is anticipated that Witness G's evidence will be that the Accused Chamma represented to him that the Accused Hicks stabbed the deceased; and that the Accused Hicks represented to Witness G that he (the Accused Hicks) stabbed the deceased. 3. It is also noted that the participants in the telephone call appeared to be under the influence of an intoxicating substance and could be "talking nonsense". 4. Accordingly, it is contended the probative value is outweighed by danger of the prejudicial effect it has on the Accused Chamma. Submissions by the Crown 1. The Crown states that the evidence is relied upon as an admission and is a "compelling" piece of evidence for the prosecution. The Crown points to s 88 of the Evidence Act which is to the effect that: 88 Proof of admissions For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission. 1. It is relied upon not as proof that the Accused Chamma personally stabbed the deceased but as evidence to show his involvement in the death. 2. As to the other prejudicial material involving violence and criminal association, the Crown contends that this material is required in order to give meaningful context to the admission in question. The Crown contends that the reference by a young man to be willing in some circumstances to punch another man is a very low level of violence. 3. The Crown also notes that the telephone call was less than six weeks after the deceased was stabbed and killed. The Crown further points to the evidence of Ms Devi which includes that she saw the deceased on the day he died with a bag "estimated to have $10000 in it", and further stated that he handed her what turned out to be $640 although the deceased had said it was $940. This accords, the Crown submits, with the deceased having in the vicinity of $9000 when he was killed. 4. The Crown further submits: "In any event, it could hardly be thought there is any ambiguity in the impugned conversation. Like the instant offence, it refers to 'stabbing', the taking of a considerable and similar amount of money, and the subsequent death of the person from whom the money was taken. Taken with other evidence, the interpretation contended for is open, and indeed compelling." 1. To the extent that the Accused Chamma stated he did the stabbing, rather than the Accused Hicks, that is consistent with him big-noting himself in the context of the conversation with Mr Yeend. Consideration of telephone intercept evidence 1. First, pursuant to s 88 of the Evidence Act, for the purposes of determining admissibility I am satisfied that the Accused Chamma made the admission in question. 2. Secondly, I am not persuaded by the Accused Chamma that the admission is too general and not sufficiently connected with the killing the subject of this trial. Not only was the admission made less than six weeks after the killing, by someone who was at the house of the deceased on the day of the death, but the amount of money mentioned in the call is clearly similar to the amount of money the deceased was seen to have on him on the day of his death. 3. The surrounding conversation involving violence and criminal associations indicate only low level criminality and are not prejudicial in the context of the murder allegation. They are otherwise necessary to put the admission in context. 4. That the Accused Chamma could be seen to be big-noting himself by claiming a larger role in the killing (as the stabber) than may be the case, is something the jury can take into account in the context of the case as a whole. 5. I am of the view that the telephone intercept evidence has high probative value, and there is no danger of unfair prejudice. Accordingly, the probative value of the telephone intercept evidence is not outweighed by the danger of unfair prejudice to the Accused Chamma and is admissible. Orders 1. Accordingly, in relation to the Accused Chamma, the Court makes the following orders: 1. The fire pit evidence is admissible. 2. The telephone intercept evidence is admissible. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2023