R v Nehme (No 4)

[2024] NSWSC 516

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Nehme (No 4) [2024] NSWSC 516

Hearing dates:

19 March 2024, 20 March 2024

Date of orders:

20 March 2024

Decision date:

06 May 2024

Jurisdiction:

Common Law

Before:

McNaughton J

Decision:

The Court makes the following order:

(1) Paragraph 30 of the statement of Robyn Bradley, dated 7 December 2019 (other than the last two sentences) is admissible

Catchwords:

CRIME – evidence – previous representation of drug supply – where mother gave police statement – where mother is an unavailable witness – whether evidence admissible for its non-hearsay purpose per Evidence Act, s 60 – whether evidence admissible as an exception to hearsay per Evidence Act, s 65

Legislation Cited:

Evidence Act 1995 (NSW), pt 2, ss 55, 60, 65, 136

Cases Cited:

Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Rex (Crown)
Joseph Nehme (Accused)

Representation:

Counsel:
K Ratcliffe (Crown)
D Dalton SC /T Weller-Wong (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
JB Corban Lawyers (Accused)

File Number(s):

2019/388186

JUDGMENT

Introduction

1. On 20 March 2024, on the application of the accused, which was opposed by the Crown, I ruled that paragraph 30 of the statement of Robyn Bradley, dated 7 December 2019, (other than the last two sentences which were not part of the application) was admissible. ^[1]

   1. For convenience, for the balance of this judgment, paragraph 30 of Ms Bradley’s statement will be referred to as if the last two sentences were not included.

2. Ms Bradley is the mother of the deceased, Luke Lembryk. Ms Bradley tragically died from cancer only a few months after the death of her son. Ms Bradley is clearly therefore an “unavailable” witness (Evidence Act 1995 (NSW), Dictionary pt 2 s 4(1)(a)).

3. The defence also sought to adduce evidence of the deceased’s convictions in 2014 for two offences of drug supply and one offence of dealing with proceeds of crime, together with the Statement of Facts relating to those three offences. The Crown also opposed the admission of this evidence. I ruled that certain details of the offences could be led, but not the Statement of Facts.

4. Following that ruling, the Crown indicated that they would lead the material which had been ruled admissible through the Officer in Charge.

5. I now set out the reasons for my decision.

6. The deceased was stabbed in the early hours of 7 December 2019 at his home, which he shared with his mother. The stabbing occurred in the course of a planned robbery of cash and/or drugs from the deceased. Ms Bradley was nearby when the deceased was stabbed, but in another room. The deceased died shortly after he was stabbed.

7. Later that day, following the death of her son, Ms Bradley made a police statement. Most of that statement has already been led in evidence, before the jury, by agreement, through the Officer in Charge, Detective Sergeant Colefax, on 11 March 2024. A number of paragraphs were not read, because they were still the subject of discussion between the parties. Of these unread passages, only paragraph 30 was ultimately sought to be adduced in evidence by the defence.

8. The position of both parties in relation to paragraph 30 appeared to shift somewhat before their final position was settled. I did not take the shifting positions into account in my determination.

9. The Crown’s final position was that paragraph 30 was not admissible as it was inadmissible hearsay, and that the 2014 matters were not relevant. The defence contended the material was relevant and admissible under either ss 60 or 65 of the Evidence Act.

The representations

10. Paragraph 30 reads (relevantly) as follows:

“I have a feeling that Luke might have been using or selling drugs. He got in trouble for it a couple of years ago and I was recently told by our friend CS (who is the mother of Luke’s ex-girlfriend R) that Luke was dealing. She told me about two months ago when I saw her at a party at the Panania Diggers Club. She said that he was dealing drugs, and he was going to get into trouble. I told Luke later that night about what I’d heard and I told him if it was true that I would dob him in myself. I told [Luke] [misspelled as Like in the statement] not to be so stupid.”

11. The previous representations of Ms Bradley the defence seeks to adduce are:

1. I have a feeling that Luke might have been using or selling drugs;

2. He got in trouble for it a couple of years ago;

3. I was recently told by our friend CS (who is the mother of Luke's ex-girlfriend R) that Luke was dealing;

4. She told me about two months ago when I saw her at a party at the Panania Diggers Club;

5. She said that he was dealing drugs, and he was going to get in trouble;

6. I told Luke later that night about what I'd heard and I told him if it was true that I would dob him in myself; and

7. I told Luke not to be so stupid.

Admissibility

12. The first question of admissibility is relevance. Evidence that is relevant is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (Evidence Act, s 55).

13. I am satisfied that it is a fact in issue in this trial as to whether or not the deceased armed himself with a knife from his bedroom prior to his death. Included in the telephone intercept material is item 265, which is a telephone call between Lisa Anne Price (the person who it is contended proposed the “job” of robbing the deceased to the accused) and the accused, during which they have the following exchange:

Price:    “So what was he strapped? He was really strapped?”

Accused:    “Yeah, but he thing, so my mate went in and then, he, he, he walked to the door and then he ran back to his room, grabbed one, but he stabbed him. Anyways, I’ll tell you when I see you, bye.”

14. I agree that it is open to the defence to submit to the jury that the reference to “he” being “strapped” and “grabbed one” is a reference to the deceased arming himself with a knife or other weapon. The use of the words “his room” are clearly capable of being interpreted as the deceased’s bedroom.

15. This has potential significance as included in Ms Bradley’s statement (and already read to the jury) is the following:

“I also saw a large knife with no handle that was laying on the carpet in front of the lounge. It was covered in blood and missing the handle. I would say the knife was about 10 inches in length. The knife was not familiar to me. It’s not one of our household items.”

16. I agree with the defence contention that the evidence contained in paragraph 30, if accepted, could rationally affect the jury’s assessment of whether or not the deceased had a knife in his bedroom not familiar to Ms Bradley, and whether he retrieved it sometime prior to his death. As I understand it, this in turn has relevance to the issue of whether the accused and/or his co-accused, Viliami Taufahema, were armed when they broke into the Lembryk/Bradley villa. Further, as I understand it, this in turn goes to the issue of whether the accused foresaw the possibility that a person may be intentionally seriously harmed in the course of the break-in, such as would ground his liability for joint criminal enterprise murder.

17. I understand the basis for the defence contention is that, if the accused’s involvement in drug dealing can be established independently from Ms Bradley’s evidence, there is an available inference arising from paragraph 30 of Ms Bradley’s statement that the deceased was motivated to conceal evidence of his drug dealing (including, relevantly, concealing a knife in his bedroom) to prevent his mother from discovering it and alerting the police.

18. I note that there is circumstantial evidence in the trial, independent of paragraph 30, which could ground a submission that the deceased was involved in drug dealing. This includes the following:

1. The deceased came from his house to the vehicle that SG and Ms Price were in with cocaine when he met them in August of 2019.

2. At this time, the deceased had in his possession an amount of cocaine approximately the size of a golf ball.

3. SG had never seen that amount of cocaine before.

4. At the time SG was a recreational user of cocaine.

5. SG had heard that that amount of cocaine was worth about 6 to 7 thousand dollars.

6. The deceased supplied cocaine (albeit for free) to SG and Ms Price and used cocaine with them in the car.

7. SG observed an amount of cash in the deceased’s bedroom that she described as being in two stacks, both being about the height of a pen, and all $50 notes.

8. SG estimated this to be 10 to 20 thousand dollars.

9. Cash was located by the police in the deceased’s bedroom the day of his death in the sum of $4,870.00.

10. The deceased had previous convictions for cocaine supply (albeit some years before).

11. The two references by the accused to the “guy [Luke Lembryk]” being “strapped”.

19. In accordance with Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [57] (albeit the principle was stated in a slightly different context), I will address the representations sought to be adduced on an individualised basis.

Statements either admissible for a non-hearsay purpose or admissible as first hand hearsay

“I have a feeling that Luke might have been using or selling drugs”

20. The defence contends this representation is admissible for its non-hearsay purpose. That is, as proof of the fact that Ms Bradley had, in fact, experienced a feeling, not that the deceased was, in fact, selling drugs (Evidence Act, s 60).

21. In my view, it is admissible pursuant to s 65(8) of the Evidence Act as to what Ms Bradley said as to what she felt. It is not, on its face, evidence that the deceased was selling drugs. It is relevant as part of the context to explain why Ms Bradley made comments to the deceased outlined below. I note that it may be appropriate for the jury to be directed as to the limitations of this evidence pursuant to s 136 of the Evidence Act.

“He got in trouble for it a couple of years ago”

22. The defence relies on this representation for its truth, that is, for its hearsay purpose. I do not agree with the defence contention that it is an admissible “previous representation” being something Ms Bradley heard, saw, or perceived (Evidence Act, s 65(8)).

23. In my view, it is admissible under s 65(8) for its truth as a representation by Ms Bradley which was heard by the police officer taking her statement.

“I was recently told by our friend CS (who is the mother of Luke's ex-girlfriend R) that Luke was dealing”

24. The defence relies upon this representation for its non-hearsay purpose. That is, for the purpose of establishing the fact of the conversation between CS and Ms Bradley, not for the truth of the assertion that the deceased was ‘dealing’ (Evidence Act, s 60). They further rely upon it as to whether, having received this information, the police have approached CS to obtain a statement as to the fact of any such conversation and the basis upon which she had provided that information.

25. In my view, the representation in question is that Ms Bradley was told about Luke’s dealing. It is being relied upon as to the truth that she was told that. It is admissible under s 65(8) to prove what she was told, but not to prove that the deceased was dealing. It is relevant to explain why Ms Bradley made the comments to the deceased outlined below. I note that it may be appropriate for the jury to be directed as to the limitations of this evidence pursuant to s 136 of the Evidence Act.

“She told me about two months ago when I saw her at a party at the Panania Diggers Club”

26. This is relied upon by the defence to establish that CS told Ms Bradley the above information about two months previously at the place indicated. I do not agree with the defence contention that it is an admissible “previous representation” under s 65(8) of the Evidence Act, being something Ms Bradley heard, saw, or perceived. However, in my view, it is admissible under s 65(8) because the representation that Ms Bradley was told something two months ago at the place indicated was heard by the police officer who took Ms Bradley’s statement.

27. Again, it is relevant to explain why Ms Bradley made the comments to the deceased outlined below.

“She said that he was dealing drugs, and he was going to get in trouble”

28. This is relied upon by the defence for its non-hearsay purpose. That is, to establish the fact of the conversation occurring, not for the truth of the assertion that the deceased was dealing drugs and going to get into trouble (Evidence Act, s 60).

29. The representation sought to be relied upon by the defence is that Ms Bradley was told by CS that her son was dealing drugs and he was going to get in trouble. To that extent, in my view, it is relied upon as to its truth – that is, that CS told her this information. The balance of the sentence is relied upon for a non-hearsay purpose.

30. Again, in my view, it is admissible under s 65(8) to prove that she was told this information, but not to prove that the deceased was dealing nor that he was going to get in trouble. It is relevant to explain why Ms Bradley made the comments to the deceased outlined below. I note that it may be appropriate for the jury to be directed as to the limitations of this evidence pursuant to s 136 of the Evidence Act.

“I told Luke later that night about what I'd heard and I told him if it was true that I would dob him in myself”

31. It is necessary to break this up into two representations. They are both relied upon by the defence for the purpose of establishing that Ms Bradley did in fact say those words to the deceased.

“I told Luke later that night about what I'd heard”

32. This is admissible for its truth as an exception to the hearsay rule pursuant to s 65(8) of the Evidence Act. That is, it is admissible as a representation made by Ms Bradley, and heard by the officer who took her statement, pursuant to s 65(8) (not, as the defence contended, a representation perceived by Ms Bradley as she was saying the words to Luke).

“I told him if it was true that I would dob him in myself”

33. This statement is not being relied upon by the defence to prove the fact that Ms Bradley would, in fact, report Luke to the police if it was true. Rather, it is relied upon to prove that Ms Bradley said or conveyed this information to Luke. To this extent, the statement is being relied upon for its hearsay purpose, and I agree it is admissible pursuant to s 65(8) of the Evidence Act.

34. I agree it is relevant to establish a motive for the deceased to conceal from his mother items associated with his drug dealing.

“I told [Luke] not to be so stupid”

35. This statement is sought to be relied upon by the defence for the truth of the representation that Ms Bradley told the deceased he was being stupid, but not the fact of him actually being stupid by dealing drugs (Evidence Act, s 65(8)). I agree this representation is admissible on the basis contended for by the defence.

2014 charges for drug supply

36. As indicated, the defence also wished to adduce evidence that the deceased had been convicted in February 2014 for two separate instances of supplying cocaine, one involving an amount of 0.7 grams, the other involving an amount of 0.76 grams, together with a conviction of dealing with property suspected of being proceeds of crime (involving an amount of $5,475.00 in cash). For the reasons indicated above, I was of the view that these matters were relevant and admissible. However, I could not see the further relevance of the Statement of Facts being tendered before the jury, and following that indication, the defence did not press for its admission.

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Endnote

Amendments

07 May 2024 - Representation amended.

08 August 2025 - Coversheet - removed publication restriction note.

Paragraph [1] - restored footnote.

Decision last updated: 08 August 2025