By Paul Gregoire and Ugur Nedim
On 9 December 2022, 18-year-old Bailey Jones was at the Bomaderry home of the family of his 21-year-old cousin, Dominic Saliba, with some other friends.
During the evening, Saliba and Jones were said to have started “slapboxing”. Each of the men were then seen to hold various containers filled with money or cannabis, and witnesses are said to have heard Saliba claim, “This is mine.”
Saliba then left the garage to enter the kitchen and Jones followed him, only to then return minutes later clutching his chest and bleeding.
Jones had two stab wounds to the chest. Saliba claimed, “He fell on the knife.” Paramedics were called, and the injured man received treatment, however he died a short time later. And when asked about the knife, Saliba told an officer, “I got rid of it, bro.” The suspect later pointed to a knife on the kitchen floor and said, “There it is.”
Saliba was further recorded speaking on a surveillance device on 12 December 2022, telling a friend that he had to “come up with a story”. He then added that Jones had “shaped up” to him, so he grabbed a knife and then “jabbed him three times” to make “three stab wounds”, and he considered he must have “hit his heart”.
Jury or judge-alone
Saliba is scheduled to stand trial for the offence of murder in Nowra District Court on 10 March 2025. In the lead up to his being tried before a jury, the defendant’s criminal defence lawyer applied to the court to secure a “trial by judge-alone” under the provisions of section 132 of the Criminal Procedure Act 1986 (NSW), and the question came before New South Wales Supreme Court Justice Peter Hamill on 3 March.
The defendant’s lawyer argued for a judge-alone trial, which is not a request that is simply provided, as it needs to be justified to the court. In Saliba’s case, his lawyer argued that in line with subsection 132(4) of the Act, the court should make the trial by judge-alone because it was “in the interests of justice to do so”.
According to Saliba’s lawyer, the potential for an unfair jury trial was due to the possible prejudicing of jurors in relation to two matters. The first was that there had been mainstream and social media posts that reflected the grief of the Jones family and criticised Saliba’s “reprehensible conduct”, and the second was that the defendant’s heavy tattooing might prejudice the jury against him.
Justice Hamill explained that “in the interests of justice” includes the interests of the defendant but covers much more. His Honour noted that it’s significant for an defendant to abandon their right to a jury, although neither a jury nor a judge-alone trial is the default. And in terms of a jury complying with directions, a court must proceed on the basis that it will understand them and comply.
Matters for consideration
The NSW Supreme Court heard on 3 March 2025 that the defendant is set to argue that when Jones entered the kitchen from the garage, Saliba was present holding a knife, and this caused the deceased to run at the defendant and attempt to punch him with a closed fist, and on missing his target, which was Saliba’s head, the knife then penetrated Jones’ body.
“From the material tendered on the application,” Justice Hamill explained in his 6 March 2025 findings, “it seems that there will be no issue that Mr Saliba’s act caused the stab wound that led to Bailey Jones’ death.”
“However, there may be an issue whether the stabbing was a ‘voluntary’ act and there will almost certainly be an issue whether that act was accompanied by a specific intention to kill or inflict really serious injury,” his Honour added.
Questions of self-defence have also been triggered in this case, which include whether Jones threw a punch at Saliba’s head, if the defendant considered he was defending himself, along with whether Saliba’s conduct was “a reasonable response to the circumstances as he perceived them to be”.
His Honour added that in Saliba’s case, “the tribunal of fact”, which is either a judge or a jury, will have to consider witness reliability, resolve any conflicts of opinion between expert witnesses, as well as whether the defendant’s conduct after the fact had reflected guilt, which includes his having hidden the weapon, having told lies regarding who brandished it and how it penetrated the body.
The issues warranting judge-alone
In terms of the publicity in the mainstream and on social media, many posts relating to the family’s grief had been circulating online, with special concerns being placed on those conveying sympathy towards Jones’s mother, Caroline Micallef, while two significant reports from Channel 7 and the Daily Telegraph had been removed from the internet due to request of the court.
Justice Hamill further found that it wasn’t possible to ascertain whether all social media posts had been removed, while any potential juror who’d seen such material would “have difficulty bringing an unemotional and impartial mind to bear upon the issues”. Although four key social media accounts that had been distributing such material, had been set to private by the time of the hearing.
As for Saliba’s tattoos, his Honour explained that the defendant’s face and neck are heavily tattooed, and despite the prosecution suggesting these could be concealed with makeup, the judge was unsure whether this would suffice.
A 2018 study was tendered, which claims that jurors have a negative impression of tattoos, especially in relation to physical assault. The study found that the presence of tattoos does make a guilty finding more likely and “baby-faced or attractive defendants” often get off more leniently. His Honour noted, however, that the weight to be placed on such studies was “questionable”.
A key issue regarding the tattoos involved the jury having to watch an electronically recorded interview featuring Saliba in the wake of the killing with his shirt off and his extensive tattoos are easily noticeable. And his solicitor pointed out to the court that when Saliba is wearing a shirt, there are still two knives depicted on his face, as well as the word “hustle”.
Judge-alone instead of a jury
In going on to deliver his findings, Justice Hamill set out that he was satisfied that Saliba had met the “‘evidentiary burden’ to raise matters capable of establishing that it is in the interests of justice that he be tried by a judge sitting without a jury”.
“The question whether… it is in the interests of justice is more difficult,” his Honour continued. “This is not a case where there is a single strong factor, or a combination of factors, that tip the scales decisively either way.”
Justice Hamill accepted that while there were concerns around prejudicing the jury in relation to content available online, the mainstream media had removed the major pieces relating to Saliba, and the major social media accounts that were propagating the posts about the death had been set to private, so while their remained some “residual risk”, this was minor.
As for the issue of the tattoos, his Honour considered it of “greater prominence”, as while the nature of the defendant’s face tattoos may not be immediately evident in the interview footage, if Saliba came to give evidence during the trial, they would be discernible and a knife tattoo appearing on the face of the defendant would likely prejudice the jury on a subconscious level.
His Honour further set out that while the jury could be directed to overlook the tattoos, this would draw greater attention to the nature of them, and it “may do more harm than good”. And the judicial officer said he did not place a lot of weight on the arguments made in the study.
Further, Justice Hamill found that the defendant had made a relevant request based on the legal advice that a jury may be prejudiced, and this did consist of more than a “mere stated apprehension”, as it was rather based on rational evidence.
So, in considering all this, his Honour ruled on 6 March 2025 that it was in “the interests of justice to make an order that the defendant be tried by judge-alone”, and he confirmed that Saliba would stand before New South Wales District Court Judge Dina Yehia in Nowra on Monday 10 March 2025.
