R v Saliba (No 2) (Judge alone application) - [2025] NSWSC 155

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Saliba (No 2) (Judge alone application) [2025] NSWSC 155
Hearing dates: 27 February and 3 March 2025
Date of orders: 6 March 2025
Decision date: 06 March 2025
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) In the murder trial of the accused, Dominic Saliba, I make a trial by judge order pursuant to s 132 of the Criminal Procedure Act 1986 (NSW).
(2) Confirm the trial is listed before Yehia J in Nowra on Monday 10 March 2025.
(3) Direct the Registrar and/or Supreme Court Media Liaison Officer to contact Channel 7 and the Daily Telegraph to advise them, with the Court’s gratitude, that the items taken down voluntarily from their websites and social media platforms may be re-published once the trial commences before Yehia J next week.

Catchwords:
CRIMINAL LAW – application for trial by judge alone – relevant considerations – relevance of mainstream and social media items – extent to which prejudice capable of being cured by direction and vetting of jury panel – where self-defence likely to be raised – extent to which “reasonableness” and application of community standards will apply – facial tattoos – where tattooing patent – where tattoos depict knives or scythes – where death caused by stabbing – whether prejudice capable of being cured by direction – relevance of academic studies close to ten years old – where interests of justice lie

Legislation Cited:
Crimes Act 1900 (NSW), s 421
Criminal Procedure Act 1986 (NSW), s 132, 132(4), 132(5), 132(6), 132A

Cases Cited:
Arthurs v Western Australia [2007] WASC 182
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72
R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
R v GSR (No 3) [2011] NSWDC 17
R v Qaumi & Ors (No 14) (Judge alone application) [2016] NSWSC 274; (2016) 265 A Crim R 575
R v Qaumi & Qaumi [2016] NSWSC 1473
R v Simmons; R v Moore (No 4) [2015] NSWSC 259; (2015) 249 A Crim R 120
R v Stanley [2013] NSWCCA 124
R v White [2024] NSWSC 1369
Redman v R [2015] NSWCCA 110

Texts Cited:
F Funk and A Todorov, “Criminal Stereotypes in the Courtroom: Facial Tattoos Affect Guilt and Punishment Differently” (2013) 19(4) Psychology, Public Policy, and Law 466
K Brown, B McKimmie and T Zarkadi, “The Defendant with the Prison Tattoo: The Effect of Tattoos on Mock Jurors’ Perceptions” (2018) 25(3) Psychiatry, Psychology and Law 386
Lord Devlin, Trial by Jury (rev ed, 1966)

Category: Procedural rulings
Parties: Dominic Saliba (Applicant)
The King (Respondent)
Representation:
Counsel:
R Khalilizadeh (Applicant)
K Ratcliffe (Respondent)
Solicitors:
Hugo Law Group (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2022/00386498
Publication restriction: N/A

JUDGMENT

The accused, Dominic Saliba, seeks an order under s 132 of the Criminal Procedure Act 1986 (NSW) for a “trial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 155
Decision Date: 06 March 2025

CaseChat Overview and Summary

In this case, the defendant, Mr Saliba, sought a trial by a judge alone rather than a jury. The matter involved a stabbing incident resulting in death, and Mr Saliba intended to raise the defence of self-defence. The application was heard in the Supreme Court of New South Wales. The primary legal issue was whether the prejudice against Mr Saliba, owing to his appearance, including facial tattoos depicting knives and scythes, could be sufficiently mitigated by jury directions and vetting of the jury panel, such that a fair trial could be ensured.

The court considered several factors, including the relevance of media reports and the extent to which such prejudice could be cured. The judge examined whether the community standards of reasonableness would apply to the defendant's case, given the likely invocation of self-defence. The court also assessed the significance of academic studies, albeit slightly outdated, concerning the impact of such visual cues on jury perceptions. Ultimately, the court determined that while the prejudice was substantial, it was not insurmountable. Directions to the jury and careful selection could adequately address the concerns, ensuring a fair trial. Therefore, the application for a trial by judge alone was dismissed.

The court emphasised the need for a balanced approach, weighing the defendant's right to a fair trial against the potential for prejudice. It concluded that the interests of justice were best served by proceeding with a jury trial, provided that robust measures were taken to manage any prejudice. The court ordered that specific directions would be given to the jury, and the selection process would be closely monitored to mitigate any prejudicial effects.

Orders