R v Nehme; R v Price; R v Rahim; R v Rizk; R v Taufahema (No 2)

[2023] NSWSC 1657

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Nehme; R v Price; R v Rahim; R v Rizk; R v Taufahema (No 2) [2023] NSWSC 1657

Hearing dates:

24 October 2023

Date of orders:

24 October 2023

Decision date:

24 October 2023

Jurisdiction:

Common Law

Before:

McNaughton J

Decision:

In relation to the accused Nehme, the Court makes the following order:

(1) The visual aspect of the Electronically Recorded Interview with Suspected Person of the accused Nehme is admissible

Catchwords:

CRIME – murder – whether visual aspect of the Electronically Recorded Interview with Suspected Person (“ERISP”) is unfairly prejudicial – visible injuries to the face of the accused person – visual aspect of the ERISP significantly assists in assessing demeanour and credibility – visual aspect of the ERISP admissible – robust direction to be given to jury

Legislation Cited:

Evidence Act 1995 (NSW), s 137

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
K Ratcliffe (Crown)
D Dalton SC / T Weller-Wong (Joseph Nehme)
T Quilter (Lisa Anne Price)
B Neild SC (Bilal Rahim)
N Carroll (Sherene Rizk)
A Evers (Viliami Bui Taufahema)

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

File Number(s):

2019/00388186, 2019/00399270, 2019/00388028, 2019/00397014, 2019/00388190

Publication restriction:

No publication until the conclusion of the trial against Joseph Nehme

EX TEMPORE JUDGMENT (REVISED)

Introduction

1. Mr Dalton of Senior Counsel, on behalf of the accused Joseph Nehme, submitted, in the context of Button J having previously ruled that evidence comprising the Electronically Recorded Interview with Suspected Person (“ERISP”) of the accused Nehme admissible, that the vision of the ERISP should nevertheless not be put before the jury.

2. The vision of the ERISP shows visible injuries to the face of the accused Nehme, sustained from an incident unrelated to the subject offences.

3. It was put that the vision would be unfairly prejudicial, as it suggests that the accused Nehme was involved in other violent encounters and is a person of bad character generally. It was put that that the ERISP vision should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW).

Consideration

4. I have viewed the ERISP in its entirety. Since Button J made his ruling, the Crown has agreed to exclude those parts of the interview which relate to how the accused Nehme became injured and those portions which relate to his minor criminal history. Given those exclusions, those matters will not be before the jury in any form. Accordingly, what is left for my determination is the visual appearance of the accused Nehme during the course of the interview.

5. Mr Dalton SC submits that the vision of the ERISP has little probative value over and above the audio of the ERISP. On the other hand, the Crown submits that the visual aspect of the ERISP has significant probative value and points to the importance of the vision in allowing the jury to assess the credibility of the accused in relation to the account he gives, which the Crown contends is a false account. The Crown contends that the demeanour of the accused, his expression, his gestures and his adamance in relation to matters which the Crown contends are live issues, are important matters which should properly be before the jury, and which can only be properly viewed in the full context of the visual and audio aspects of the ERISP. Without the visual material the Crown contends that certain matters would simply not be available to the jury to properly assess the accused Nehme’s demeanour and credibility.

6. The Crown also submits that whilst the injuries are initially quite noticeable, after a while the impact of those injuries diminishes considerably and the focus stops being on those injuries. Having viewed in detail the whole of the ERISP, I agree with the Crown submission that the initial visual impact of the injuries significantly subsides and that the viewer rapidly becomes acclimatised to the appearance of the accused Nehme.

7. I agree with the Crown submissions that the visual aspect of the ERISP significantly assists in the issues of assessing demeanour and credibility and it should properly be before the jury. This is the case especially when robust directions can be given to the jury to disregard any speculation as to how any injury that the accused Nehme suffered came about.

8. In all the circumstances, and in light of the fact that I am prepared to give such a robust direction, I am of the view that the probative value of the visual aspect of the ERISP is not outweighed by the danger of unfair prejudice to the accused Nehme and that the visual aspect of the ERISP should be admitted.

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Amendments

07 May 2024 - Representation amended.

Decision last updated: 07 May 2024