R v Nehme, Price, Rahim, Taufahema and Rizk (No 3)

[2023] NSWSC 844

Supreme Court

New South Wales

Medium Neutral Citation:

R v Nehme, Price, Rahim, Taufahema and Rizk (No 3) [2023] NSWSC 844

Hearing dates:

20 February-10 March 2023

Decision date:

24 February 2023

Jurisdiction:

Common Law

Before:

Button J

Decision:

Various rulings about elements of constructive murder in combination with extended joint criminal enterprise

Catchwords:

CRIME – murder – trial by jury – constructive murder – act causing death relied upon for constructive murder an element of foundational offence – reasons for pre-trial determinations as to what needed to be proven by the Crown – reasoning arguably superseded by subsequent authority of the High Court of Australia

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

R v Sharah (1992) 30 NSWLR 292

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

R v Batcheldor v R; Walsh v R [2014] NSWCCA 252

Mitchell & Ors v The King (2023) 97 ALJR 172; [2023] HCA 5

R v Nehme, Price, Rahim, Taufahema and Rizk (No 2) [2023] NSWSC 843

R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
C Taylor (Crown)
D Dalton SC (Joseph Nehme)
T Quilter (Lisa Anne Price)
P Young SC (Bilal Rahim)
A Evers (Viliami Bui Taufahema)
J Stratton SC with M Fordham (Sherene Rizk)

Solicitors:
Solicitor for Public Prosecutions (NSW) Crown
J B Corban Lawyers (Joseph Nehme)
Sydney Side Lawyers (Lisa Anne Price)
Australian Criminal & Family Lawyers (Bilal Rahim)
Criminal Law Group (Viliami Bui Taufahema)
Malouf Criminal Lawyers (Sherene Rizk)

File Number(s):

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

Publication restriction:

Nil

JUDGMENT

Introduction

1. This judgment explains why, at a pre-trial stage in a murder trial involving five accused, I indicated (at trial transcript page 184 line 22; from now on “TT 184.22”) that I proposed to direct the jury in a certain way about the elements of the alleged offence.

2. This judgment assumes familiarity on the part of the reader with my previous judgments in the matter, including the terminology and shorthand terms used within them: see R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202; R v Nehme, Price, Rahim, Taufahema and Rizk (No 2) [2023] NSWSC 843. I shall not repeat any of that background, except to say that, because the trial was aborted, and came nowhere near the delivery of my summing up, let alone the return of verdicts, my ruling was necessarily contingent and subject to conceivable revisitation. For that, and another reason that I shall explain at the end of this judgment, I shall again be concise.

Contentions

3. By way of context, I felt it imperative that the question of which elements the Crown needed to prove against the four accused (except for Ms Rizk, which was discussed separately in Court, and has been discussed in a separate judgment) be resolved, to the extent reasonably practicable, before the openings of all counsel to the jury. A number of controversies about those elements were the subject of helpful written and oral submissions, and lengthy discussions (TT 83.31 ff). Mr Dalton SC for Mr Nehme, and Mr Quilter for Ms Price, took the lead on behalf of all four of the relevant accused.

4. A significant submission made by Mr Quilter was as follows. The wounding of the deceased (which, as I have explained previously, was both the final element of the foundational offence, and the act causing death for the purposes of constructive murder) needed to be the subject of a mental element on the part of his client, beyond mere foresight of possibility of it occurring (in accordance with extended joint criminal enterprise for the foundational offence).

5. He relied upon the well-known judgment of R v Sharah (1992) 30 NSWLR 292 in support of the proposition that “something more” in terms of the mental elements needs to be proven in the context of constructive murder than the mere mental elements of the foundational offence, leading to the “automatic” establishment of murder by way of the constructive doctrine. He also submitted that other cases, whilst not directly on point, had at the least implicitly accepted the correctness of what had been said in R v Sharah, and applied it generally in cases of constructive murder and complicity.

6. I respectfully rejected that proposition, on the following simple basis. On close analysis, R v Sharah was a most unusual case, in which the act causing death was not an element of the foundational offence. In that case, the mechanism of infliction of injury, and indeed the victim, of the foundational offence of armed robbery with wounding were completely separate, and different from, the mechanism of infliction of fatal injury, and the deceased victim, of the act causing death.

7. In those circumstances, it was hardly surprising that the New South Wales Court of Criminal Appeal endorsed a further mental element needing to be proven against the “accessory” (I use that term generically), in order for that person to be guilty of murder. To repeat: the foundational offence “stood outside” the (constructive) murder.

8. But in this trial, as I have shown in previous judgments, the wounding that was allegedly part of the foundational offence was also the act causing death for the purposes of constructive murder.

9. Contrary to the submission of Mr Quilter, I did not consider that anything further needed to be proven about the state of mind of his client (or any of the other three accused under consideration), above and beyond foresight of the possibility of a wounding, for the purposes of extended joint criminal enterprise. In that regard, I preferred (for example) the analysis of Hidden J in R v Batcheldor v R; Walsh v R [2014] NSWCCA 252 to the effect that, once the physical and mental elements of the foundational offence are proven, then, so long as the act causing death is one of those proven elements, the doctrine of constructive murder (if otherwise established temporally and in other ways, in accordance with s 18 of the Crimes Act 1900 (NSW)) leads in a sense “automatically” to liability for murder.

10. In a similar vein, I rejected his submission that the wording of s 18 of the Crimes Act calls for a mental element on the part of an accessory about the nature of the act causing death, as opposed to its consequence in the form of a wounding. Again, I believed that that would undermine the long-established objective intention of Parliament to inculpate constructively in murder, persons who are otherwise proven to have engaged in an offence, which carries a maximum penalty of imprisonment for life or 25 years, in close connection with the act causing death.

11. Separately, an important submission of Mr Dalton was that there must be some sense in which a person, who could not be established to have fatally stabbed the deceased personally, must be proven to have (at least) foreseen the possibility of the use of a weapon. In other words, senior counsel submitted that it was too generic simply to speak of foresight of the possibility of the mere outcome of a wound in the form of a cut of that extends below the outermost layer of the skin; the criminal law in this context must be speaking of a more specific state of mind on the part of a person allegedly inculpated by way of such an expansive doctrine of complicity.

12. I respectfully rejected that submission as well, for a number of separate but related reasons. I considered that: the element of the foundational offence is the consequence of “wounding”, not the act of “stabbing”, “cutting” and so forth; a wound can be inflicted in many ways, and does not inherently require the use of a weapon; it was not an element of the particular foundational offence (of the many within s 98 of the Crimes Act) relied upon by the Crown that any person be armed; and finally, since the decision in R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509, I have considered that the focus of extended joint criminal enterprise is upon foresight of possibility of elements (including, as necessary, mental elements of another person), not of particular mechanisms or implements or weapons whereby the element (if it is an outcome or consequence) is brought about.

13. In similar vein, I rejected the related submission of Mr Dalton that there needed to be specificity in the foresight required of an accessory in the context of joint criminal enterprise about the mechanism whereby the wounding was inflicted, in particular the specific item or weapon, or type thereof, used to cause the wound.

Conclusion

14. That is a sketch of my thinking as at the morning of 24 February 2023. Subsequently, for reasons previously explained, the trial was aborted. And of course my thinking as at that date was not informed by the guidance provided by Mitchell & Ors v The King (2023) 97 ALJR 172; [2023] HCA 5, days after my ruling, on 8 March 2023. And it remains a question for future determination the extent (if any) to which R v Sharah remains good law in New South Wales, bearing in mind that there may be an argument available that it has been implicitly overruled by the High Court of Australia.

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Decision last updated: 26 April 2024