R v Nehme, Price, Rahim, Taufahema and Rizk (No 4)

[2023] NSWSC 932

Supreme Court

New South Wales

Medium Neutral Citation:

R v Nehme, Price, Rahim, Taufahema and Rizk (No 4) [2023] NSWSC 932

Hearing dates:

20 February – 10 March 2023

Decision date:

27 February 2023

Jurisdiction:

Common Law

Before:

Button J

Decision:

Various rulings in favour of admission and exclusion regarding digital product tendered by the Crown

Catchwords:

CRIME - murder trial – Crown case relies upon extended joint criminal enterprise and being an accessory before the fact in combination with doctrine of constructive murder – pre-trial rulings – digital product sought to be relied upon by the Crown – disputes about discrete portions only of product – whether portion relevant – assessment of probative value of portion – assessment of danger of prejudicial effect arising from product – various rulings made

Legislation Cited:

Evidence Act 1995 (NSW)

Cases Cited:

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

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

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

Category:

Principal judgment

Parties:

Rex (Crown)
Joseph Nehme (Accused)
Lisa Anne Price (Accused)
Bilal Rahim (Accused)
Vilami 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 (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 several pre-trial rulings that I made about the admissibility of certain digital evidence on 27 February 2023 (at trial transcript 249 line 20; TT 249.20). As before, the judgment assumes familiarity with my previous judgments in the matter: 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; R v Nehme, Price, Rahim, Taufahema and Rizk (No 3) [2023] NSWSC 844. The only fact that I shall repeat from those previous judgments is that the Crown case was that the murder allegedly occurred in the early hours of the morning of 7 December 2019.

2. Because those evidential rulings of mine were contingent (in the sense of being able to be revisited later in the trial), and because they were never actually put into effect, in the sense of evidence being placed or not placed before the jury, and for another reason that I shall explain at the end of this judgment, yet again I shall be brief.

3. The contents of the digital product were set out in written form in a table, behind tab 9 of voir dire exhibit B. The material was the subject of detailed written and oral submissions, the latter commencing at TT 217.25.

4. As needs be, I listened to the digital product itself, that having been tendered on the voir dire as well.

Rulings in order of appearance in transcript

5. My first ruling was that row 154 of that table should be excluded from the consideration of the jury. It constituted a recorded conversation between Mr Nehme and Mr Rahim that commenced at 8:50 PM on 5 December 2019 and concluded three minutes later. The inference was readily available that the two of them were talking about committing crimes together in order to make money, referred to as “two jobs”. The written and oral submissions of the Crown made clear that the evidence was not being relied upon as demonstrating involvement in the alleged offence itself, nor as tendency evidence. Rather, it was said to be evidence of the relationship between the two men, including a relationship that featured a joint interest in activity that would generate cash.

6. I accepted that the evidence was relevant, in accordance with the test in s 55 of the Evidence Act 1995 (NSW). But I felt that the test in s 137 was engaged in favour of exclusion, for a number of reasons. First, it had been made clear by counsel that there would be no dispute in the trial that the two men had been at the home of the deceased at the crucial time in order to effect some sort of crime that would generate money. Secondly, pleas of guilty had either been foreshadowed or entered to that effect by that stage. Thirdly and finally, it was one thing for the jury to know about the harrowing alleged circumstances whereby the deceased came to lose his life; it was quite another for the jury to understand that that may well have been part of a system on the part of Mr Nehme and Mr Rahim. I felt that the latter proposition would generate significant prejudice amongst members of the community, especially in the context of a murder trial.

7. The next ruling pertained to row 161 of the same table. It was a conversation between the same two men, commencing a little after 3:31 PM on 6 December 2019, and concluding less than four minutes later. It was tendered on the same basis. For identical reasons, I ruled that it should not be provided to the jury.

8. The next ruling pertained to row 166. It was a discussion between Mr Nehme and Mr Taufahema that commenced at 6:07 PM on 6 December 2019, and concluded at 6:18 PM. The parties had very largely resolved the question, subject to one aspect (see TT 221.25 ff). It was accepted by both defence counsel that it could be placed before the jury, subject to the exclusion of two references to “rips”, which I understood to be derived from “rip off”, itself slang for robbing drugs or money from a person thought to possess them.

9. The submission of the Crown in support of admission was similar: the evidence was not tendered to prove the commission of the offence directly, but rather to show the relationship between the two men (TT 223.04 ff). It was said to provide important context to later digital product that did show, it was said, how the alleged murder came to occur.

10. I was informed that Mr Taufahema had already pleaded guilty to an offence based upon his presence at the scene of the killing.

11. For the reasons that I have provided with regard to other excluded product, I felt that s 137 of the Evidence Act was engaged here as well. Indeed, I felt that the contested portions could be even more prejudicial than the previously excluded product.

12. The next ruling pertained to row 168. That was an intercepted telephone call between Mr Nehme and Mr Rahim that commenced at 7:21 PM on 6 December 2019, and concluded about six minutes later.

13. Although the Crown pressed the digital material on the same basis as previous excluded items, I felt that this was in a different category, in the sense that the test for exclusion in s 137 had not been fulfilled, for the following reasons.

14. First, the most prejudicial portions of row 168 had already been excluded by agreement.

15. Secondly, the conversation more closely approached the time of the alleged murder.

16. Thirdly, in particular it showed the state of mind of the two men at a time approaching the alleged murder, an important factor bearing in mind the questions of foresight that were to arise with regard to extended joint criminal enterprise, in accordance with my previous rulings about the way in which I would direct the jury about the elements of constructive murder.

17. Fourthly, at page 25 of the row, it provided evidence of the state of mind of Mr Nehme with regard to cash: “If there’s fuckin’ money I’ll do it tonight; I need money.”

18. Fifthly, the concluding conversation on page 26 could readily be interpreted as containing significantly probative evidence about how “a job” (albeit not the alleged job) could be effected that night, including as to the possible presence of weapons, the possible use of violence, and the possible involvement of others.

19. In short, for a number of reasons, I felt that the probative value of this digital evidence was significantly higher than that of the items, or the portions of items, that I had excluded. I also felt that any prejudice arising from it could be comfortably managed by directions.

20. Row 295 was about a different subject matter. It was an intercepted conversation between Mr Nehme and Ms Price and thereafter Ms Rizk that commenced at 6:34 PM on 7 December 2019 (that is, many hours after the death of the deceased), and concluded a little over three minutes later. It was said for senior counsel for Ms Rizk to be irrelevant; in the alternative, s 137 was said to be engaged (see written submissions of 20 February 2023, and TT 234.46 ff).

21. I did not accept those submissions. In particular, I felt that the portion of the row that appears at the top of page 111 of the table was significant. There, one could readily infer, Mr Nehme spoke of how the alleged “rip off” of the deceased had gone badly wrong, had become a “shit job”, and why that had happened. The response of Ms Rizk was neither to ask Mr Nehme what he was talking about, nor to express any shock about anything of the sort having happened, nor to express dissatisfaction with the outcome. Instead, she merely reverted, calmly, to a prior discussion with Mr Nehme about a missing mobile phone.

22. As I have explained in earlier judgments, I believed at that stage that an important issue for the jury would be whether the Crown could prove, on the part of Ms Rizk, certain states of mind, by way of the combined effect of the doctrines of being an accessory before the fact and constructive murder. My opinion was that the asserted reaction of Ms Rizk to being told about how the foundational offence had led to homicide had very significant probative value. I also felt that it had little prejudicial effect, and that any that might exist could readily be dealt with by direction. Finally, to the extent that senior counsel posited that her reaction (or lack thereof) could readily be explained by the inference that she had surely been told in the interim by her friend Ms Price something of what had occurred (see TT 237.47 ff), thereby markedly reducing the probative value of the evidence, I felt that that submission was a matter for the jury, not a matter for me at that stage. That thinking on my part, I felt, was in accordance with the consistent position of the High Court regarding assessment of probative value.

23. For those reasons, I declined to exclude that item of digital evidence.

24. Finally, item 332 was in yet another category. It was a phone call between Mr Nehme and a Mr Habib that commenced at 9:33 AM on 8 December 2019, and concluded less than three minutes after that. The only point of contention was the fourth line of the row, at page 130.

25. The Crown position was that Mr Nehme had said words to the effect that he had “stabbed a bloke”. If so, that was significantly probative in assigning to Mr Nehme the role of principal in the first degree.

26. Senior counsel for Mr Nehme submitted that those words simply could not be heard on the digital product.

27. As can be seen from TT 246.01 ff, having listened to the product myself in Chambers as the tribunal of fact on the voir dire, I described the crucial portion as “pretty unclear and very ambiguous”. I felt that I merely “might have heard” the alleged admission. Having said that, I pointed to the many “potentialities” within the definition of relevant evidence in s 55 of the Evidence Act. In other words, to the extent that I felt that a person could interpret the sounds on the product in that way, my thought was that that crucial test could be passed.

28. As for contingent reliance by senior counsel on s 137, I agreed that the transcript that would be provided to the jury as a mere memory aid should not contain the disputed words (TT 246.24). That seemed to me an appropriate way to avoid a hotly contested interpretation wrongly being “put into the heads” of the members of the jury.

29. As the transcript shows at TT 246.51 and 249.25, my ruling was that the material was admissible, subject to the absence of transcript pertaining to the crucial portion. But because senior counsel by that stage had foreshadowed the possibility of calling expert evidence about the matter, I ultimately expressed myself tentatively.

Conclusion

30. That provides a sketch of my thinking when I delivered the rulings about the digital product on 27 February 2023. As I have explained, those rulings were by their nature contingent, and one of them was explicitly expressed in that way.

31. It also bears repeating, I think, that it was a little over a week later that the High Court clarified that some of my thinking about the elements that needed to be proven by the Crown, and the issues in the trial arising as a result, may have been misplaced. And of course, those understandings of mine underpinned my assessments of relevance, and probative value, and prejudicial effect.

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Decision last updated: 26 April 2024