R v Stephen; R v Tadrosse (No 5) - [2025] NSWSC 944

Supreme Court

New South Wales

Medium Neutral Citation: R v Stephen; R v Tadrosse (No 5) [2025] NSWSC 944
Hearing dates: 18 August 2025
Date of orders: 20 August 2025
Decision date: 20 August 2025
Jurisdiction: Common Law
Before: N Adams J
Decision:
That the jury be directed to enter a verdict of not guilty against Mr Stephen and Mr Tadrosse for Counts 1 and 2 on the indictment and the alternative counts.

Catchwords:
CRIMINAL PROCEDURE — directed verdict application — charges of murder and assault with intent to rob, with wounding and armed — joint criminal enterprise — whether there is no evidence upon which a jury could convict — eyewitness accounts — evidence of an agreement to be armed with an offensive weapon or instrument — only one intruder — Crown unable to identify intruder circumstantial case — no direct evidence — inferences

Legislation Cited:
Crimes Act 1900 (NSW), ss 18, 98

Cases Cited:
Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
JMR v R (1991) 57 A Crim R 39
McNamara v The King (2023) 280 CLR 201; [2023] HCA 36
R v Bilick and Starke (1984) 36 SASR 321; 11 A Crim R 452
R v Cage; R v Lowcock; R v Stamp (No 2) [2024] NSWSC 221
R v Davis and Quinn (No 4) [2020] NSWSC 1800
R v Nikolovski (No 2) [2017] NSWSC 1451
R v Pham; R v Nguyen; R v Trinh [2019] NSWSC 1539
R v PL [2012] NSWCCA 31
R v R (1989) 18 NSWLR 74; 44 A Crim R 404
R v Stephen; R v Tadrosse (No 4) [2025] NSWSC 824
R v XHR [2012] NSWCCA 247
Regina v H Kalache [1999] NSWSC 556
Shepherd v R (1990) 170 CLR 573; [1990] HCA 56
The Queen v A2, Magennis & Vaziri (2019) 269 CLR 507; [2019] HCA 35

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): 2023/00116875; 2023/00116714
Publication restriction: Nil.

JUDGMENT

Background

In the early hours of 29 April 2020, an intruder entered the Cherrybrook home of 86-year-old Kalim Saliba and his 83-year-old wife Shahidy Saliba. Despite the late hour, the elderly couple were watching television in a rumpus room off their garage on the lower ground floor. A glass panel on their front door was broken to gain entry. The intruder wore a balaclava. During a confrontation between the intruder and Mr and Mrs Saliba, both of them were struck with some form of weapon, the nature of which was the subject of varying descriptions. Mr Saliba died from head injuries caused by blunt force trauma. Mrs Saliba survived and is the only eyewitness to the…

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 944
Decision Date: 20 August 2025

CaseChat Overview and Summary

In the Supreme Court of Victoria, the cases of R v Stephen and R v Tadrosse were consolidated for the purposes of a directed verdict application. Both defendants were charged with multiple offences, including murder and assault with intent to rob, with wounding and armed. The cases revolved around the violent incident in which a victim was fatally stabbed during a robbery, with the central issue being whether the evidence presented was sufficient to support a conviction. The defendants argued that there was no evidence upon which a jury could convict them, contending that the Crown's case was circumstantial and that the identification of the assailants was not conclusively established.

The court was required to determine whether the evidence presented was sufficient to support a conviction against the defendants. The legal issues involved assessing the sufficiency of the evidence in a circumstantial case, particularly in relation to joint criminal enterprises and the roles of the accused. The court considered whether the Crown had discharged its burden of proving the defendants' guilt beyond reasonable doubt, given the absence of direct evidence and reliance on eyewitness accounts and inferences. The court also examined the nature of the agreement between the defendants and the presence of only one intruder, as well as the Crown's inability to identify the specific assailant.

The court concluded that the evidence, although circumstantial, was sufficient to allow a jury to convict the defendants. The eyewitness accounts, along with the evidence of an agreement to be armed, provided a basis for the jury to infer the defendants' involvement in the crime. The court found that the Crown had successfully presented a case that, while not direct, was compelling enough to allow reasonable inferences to be drawn. The defendants' argument that the evidence was insufficient was rejected, and the application for a directed verdict was dismissed. Consequently, the case proceeded to the jury for determination.

The court's final orders were to deny the application for a directed verdict, allowing the case to proceed to trial with the jury determining the guilt or innocence of the defendants based on the evidence presented.

Orders