R v Nehme (No 6) - [2024] NSWSC 518

Supreme Court

New South Wales

Medium Neutral Citation: R v Nehme (No 6) [2024] NSWSC 518
Hearing dates: 28 March 2024
Date of orders: 28 March 2024
Decision date: 06 May 2024
Jurisdiction: Common Law
Before: McNaughton J
Decision:
The Court makes the following orders:
(1) The application by the accused to adduce the following evidence is refused on the basis that the evidence is not admissible:
(a) That Viliami Taufahema did not give evidence at his trial and did not raise self-defence;
(b) The jury verdicts in the prosecutions of Viliami Taufahema and Sherene Rizk;
(c) The decision of the Director of Public Prosecutions to discontinue proceedings against Mr Habib

Catchwords:
CRIME – murder – joint criminal enterprise – where accused gave evidence in his trial – where evidence of guilty verdicts of other accused persons sought to be adduced – where evidence of discontinued proceedings against another accused person sought to be adduced – whether evidence is relevant – whether evidence is otherwise admissible pursuant to Evidence Act, s 108A

Legislation Cited:
Evidence Act 1995 (NSW) ss 55, 56, 91, 108A

Cases Cited:
Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

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
Publication restriction: No publication until the conclusion of the trial against Joseph Nehme

JUDGMENT

Introduction

On 28 March 2024, at the end of the cross-examination of the accused, and prior to re-examination, Mr Dalton SC, on behalf of the accused, made applications as follows:

To adduce evidence of the character of the accused in a particular respect; and

To adduce evidence in relation to the results of the charges involving the co-accused, as well as information about a close associate of the accused, Mr Habib, who was initially charged but whose charges were discontinued.

The application in relation to character was ultimately not pursued.
The applications in relation to the results of the charges involving the co-accused and Mr Habib were ultimately cast as seeking to adduce evidence in relation to the following:

Viliami Taufahema’s decision not to give evidence in his trial or raise self-defence;

The jury verdicts in the trials of co-accused Mr Taufahema, Bilal Rahim and Sherene Rizk; and

The decision of the Director of Public Prosecutions to discontinue proceedings against Mr Habib.

After receiving written submissions and hearing oral argument, apart from one application which was not ultimately pressed, I ruled that none of this evidence was admissible. I now provide the reasons for my rulings.
The basis upon which Mr Dalton submitted all this evidence to be admissible was s 108A(1) of the Evidence Act 1995 (NSW). That section relevantly provides:

108A Admissibility of evidence of…

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 6)

Details

AGLC: R v Nehme (No 6) [2024] NSWSC 518
Case: [2024] NSWSC 518
Decision Date: 06 May 2024

CaseChat Overview and Summary

In the case of R v Nehme (No 6), the defendant, Nehme, stood trial for the murder of a person during a joint criminal enterprise. The case was heard in the Supreme Court of Victoria. The prosecution sought to adduce evidence of guilty verdicts from other co-accused persons as well as evidence from discontinued proceedings against another accused person. Nehme objected to this evidence on the basis that it was irrelevant and inadmissible under the Evidence Act, section 108A.

The court was required to determine whether the evidence of the other accused persons' guilty verdicts and the evidence of the discontinued proceedings were relevant and admissible. The court considered the principles of relevance and admissibility under the Evidence Act and the case law on joint criminal enterprises. The court also considered the potential prejudice to the defendant if the evidence was admitted.

The court held that the evidence of the other accused persons' guilty verdicts was relevant and admissible as it tended to prove a fact in issue in the case. However, the evidence of the discontinued proceedings against the other accused person was not relevant and was excluded as it would be unfairly prejudicial to the defendant. The court found that the evidence of the other accused persons' guilty verdicts was relevant because it tended to prove the existence of a joint criminal enterprise and the defendant's participation in it. The court also found that the evidence was admissible under section 108A of the Evidence Act because it was not excluded by any other provision of the Act.

The court ordered that the evidence of the other accused persons' guilty verdicts be admitted, but the evidence of the discontinued proceedings against the other accused person be excluded.

Orders