Hamill J ruled that messages sent by one co-accused (Mr Latham) to a third party were admissible in his own case as evidence of state of mind and intentions, but were not admissible against his co-accused (Mr Raad and Mr Tuli) under s 87 of the Evidence Act 1995 (NSW), because the representations were not made in furtherance of the common purpose to kill or seriously injure the deceased — even on a broader construction of 'common purpose' encompassing the antecedent gun transaction. Even if s 87 were satisfied, the evidence would have been excluded under s 137 due to the danger of unfair prejudice arising from ambiguity about who was being referred to, interspersing of opinion with fact, and character/tendency implications. Rather than excluding the evidence from the joint trial entirely, the Court directed targeted redactions to the most prejudicial passages and ruled the evidence admissible only in Mr Latham's case, with judicial directions to the jury, balancing the competing fair trial interests of all three co-accused. The question whether the jury could be invited to infer that Mr Raad authored a particular depicted message was expressly left unresolved.
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