R v Nehme, Price, Rahim, Taufahema and Rizk

[2023] NSWSC 202

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202

Hearing dates:

9 March 2023

Decision date:

09 March 2023

Jurisdiction:

Common Law

Before:

Button J

Decision:

Broad interpretation adopted whereby Crown can no longer go to the jury relying upon a combination of extended joint criminal enterprise and constructive murder

Catchwords:

Crime – murder – necessarily urgent interpretation at first instance of recent judgments of High Court – Whether judgments to be read narrowly or broadly – Whether prosecution able to rely upon combination of extended joint criminal enterprise and constructive murder – Whether judicial prohibition on that combination confined to South Australian legislation only – various indicators in judgments of thoroughgoing clarification of common law – difficult to resist broad interpretation whereby prohibition applies to New South Wales as well

Legislation Cited:

Criminal Law Consolidation Act 1935 (SA)

Crimes Act 1900 (NSW)

Cases Cited:

Mitchell and Others v The Queen [2023] HCA 5

R v Johns (1978) 1 NSWLR 282

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Rex (Crown)
Joseph Nehme (accused)
Lisa Anne Price (accused)
Bilal Rahim (accused)
Viliami Taufahema (accused)
Sherene Rizk (accused)

Representation:

Counsel:
C Taylor (Crown)
D Dalton SC
T Quilter
P Young SC
A Evers
J Stratton SC with M Fordham

Solicitors:
Solicitor for Public Prosecutions
J B Corban Lawyers
Sydney Side Lawyers

Australian Criminal and Family Lawyers
Criminal Law Group
Malouf Criminal Lawyers

File Number(s):

2019/388186, 2019/399270, 2019/388028, 2019/388190, 2019/397014,

Publication restriction:

Publication restriction lifted

revised ex tempore JUDGMENT

1. In a sense, in light of what Mr Crown just said [not opposing the discharge of the jury], the following is unnecessary. But even so, because it is an important part of my determination as to whether or not there should be a discharge of the jury, I think I should express my opinion; namely, that I think it is very difficult to resist a reading of Mitchell and Others v The Queen [2023] HCA 5 (8 March 2023), to the effect that the combination of extended joint criminal enterprise at common law and constructive murder has been abolished, not just in South Australia, but throughout Australia, for all purposes.

2. I say that, appreciating that there are differences between s12A of the South Australian legislation, (the Criminal Law Consolidation Act 1935 (SA)), and s18 of our Crimes Act 1900 (NSW).

3. I also say it, appreciating that the foundational offence relied upon in this trial is significantly different from the foundational offence relied upon in Mitchell v The Queen.

4. Even so, I think the following six factors argue very powerfully for a broad interpretation.

5. The first is that, at the end of the Chief Justice's single judgment, her Honour spoke very broadly when, at [30], the Chief Justice said that "constructive crimes should be confined so far as possible in their operation”; see separately, three Justices at [46]. That, to my mind, powerfully does not have a flavour of specificity to South Australian legislation.

6. Secondly, at least three Justices spoke of the unattractiveness of what was called "constructive constructive murder" at [52] (“No such doctrine has ever existed”), [96], [101] and [103]. Again, that was expressed in very broad terms.

7. Thirdly, I think important is the firmness with which all Justices spoke. By that I mean, no Justice spoke of a restriction to the thesis that I believe underpins all judgments. No Justice provided emphasis in terms of the peculiarity of the South Australian statutory structure. No Justice sounded any note of caution, explicit or implicit, as to how that Justice's, or indeed any Justice's judgment, should be interpreted.

8. Fourthly, throughout the judgments one sees references to notions of norms and fairness, and to justice: at [44] “distort”, “anomalous”; at [46] “closer correlation between moral culpability and legal responsibility”; at [97 ff] “a [disapproved] new pathway to murder”. That kind of analysis, in my opinion, bespeaks a broad approach.

9. Fifthly, it is not unknown by any means for the ultimate appellate Court of this nation to reformulate and clarify the common law of this country in thorough-going ways. In other words, reading the judgments broadly is entirely consistent with the position of the High Court in the Australian judicature.

10. Sixthly and finally, I think there is support for the reading that the High Court was making a historic alteration to the common law by way of the references in the judgment of three Justices to historical views about the injustice that constructive murder generally can cause: at [100]. In other words, the references in 2023 to things that had been said in the 19th and perhaps even the 18th century about these doctrinal questions themselves suggest to me that the Justices of the High Court were well aware that a thorough going, broad, historic change was being brought to the common law.

11. As a result of my analysis of the judgments, if the trial were to continue, I believe that it must be conducted on the basis that the centrepiece of the Crown case – indeed, the only basis upon which murder has been identified as being available, (and I include in that, constructive murder combined with accessory before the fact; based upon extended joint criminal enterprise, and founded on R v Johns (1978) 1 NSWLR 282) - no longer exists in the common law of Australia.

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Amendments

26 April 2024 - Publication restriction lifted