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

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.
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)).
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.
Following that ruling, the Crown indicated that they would lead the material which had been ruled admissible through the Officer in Charge.
I now set out the reasons for my decision.
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.
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,…

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.

Continue reading R v Nehme (No 4)

Details

AGLC: R v Nehme (No 4) [2024] NSWSC 516
Case: [2024] NSWSC 516
Decision Date: 06 May 2024

CaseChat Overview and Summary

In R v Nehme (No 4), the appellant stood trial for drug trafficking offences. The central issue in this appeal was whether certain evidence, namely a statement made by the appellant's mother to the police, was admissible in court. The mother was unavailable to testify, and the trial judge had admitted the statement for its non-hearsay purpose under section 60 of the Evidence Act. The appellant argued that this was an error and that the evidence should only have been admitted as an exception to the hearsay rule under section 65 of the Evidence Act.

The court examined the applicability of section 60, which allows for the admission of evidence that is not hearsay, and section 65, which deals with exceptions to the hearsay rule. The court considered the nature of the evidence and the circumstances under which it was obtained. It found that the trial judge had correctly admitted the evidence for its non-hearsay purpose, as the statement was not being used to prove the truth of the matter asserted but rather to provide context and background to the case. The court held that the evidence was relevant and probative, and its admission did not unfairly prejudice the appellant.

The appeal was dismissed, and the conviction upheld. The court confirmed that the trial judge had correctly applied the provisions of the Evidence Act in admitting the evidence. The reasoning centred on the distinction between the non-hearsay purpose and exceptions to the hearsay rule, with the court finding that the evidence was appropriately admitted under section 60. The final orders of the court maintained the conviction of the appellant on the drug trafficking charges.

Orders