R v Pham

Case [2024] NSWSC 1687 18 November 2024

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Supreme Court

New South Wales

Medium Neutral Citation: R v Pham [2024] NSWSC 1687
Hearing dates: 4 – 7 November 2024
Date of orders: 18 November 2024
Decision date: 18 November 2024
Jurisdiction: Common Law
Before: Rigg J
Decision:
(1) The recorded conversation, from the point where the accused said, “I’m not, I’m not gonna say anything, if they ask questions,” to the end, is excluded pursuant to ss 90 and 138 of the Evidence Act 1995 (NSW).
(2) Any evidence of the interactions of the accused with the UCOs during the period of time corresponding with the portion of the recorded conversation excluded by order one is excluded pursuant to ss 90 and 138 of the Evidence Act 1995 (NSW).
(3) The Notice of Motion dated 7 November 2024 is otherwise dismissed.

Catchwords:
CRIME – pre-trial hearing to determine evidentiary issues – admissibility of recordings captured under conditional surveillance device warrant – recording made prior to ERISP where accused refused to speak to police – question of mild intellectual disability

Legislation Cited:
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW)
Surveillance Device Act 2007 (NSW)

Cases Cited:
Deacon v R [2019] NTCCA 21
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
Fitz-Gibbon v Wily (1998) 87 FCR 104
Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34
Higgins v The Queen [2007] NSWCCA 56
Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1
Mann v R [2023] NSWCCA 256
Pavitt v Regina [2007] NSWCCA 88
R v FE [2013] NSWSC 1692
R v Gallagher [2013] NSWSC 1102
R v Nelson [2004] NSWCCA 231
R v Swaffield (1998) 192 CLR 159; [1998] HCA 1
R v Tang [2010] VSC 578
R v Tarantino (No 6) [2019] NSWSC 1174
R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348
Sidaros v The Queen (2020) 15 ACTLR 64
Tofilau vThe Queen (2007) 231 CLR 396; [2007] HCA 39

Category: Procedural rulings
Parties: Rex
Le Nghia Pham (Accused)
Representation:
Counsel:
C Taylor (Crown)
M Avenell SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Nyman Gibson Miralis (Accused)

File Number(s): 2023/130026
Publication restriction: Statutory prohibition on the publication of the name of the child present at the scene and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW).

JUDGMENT

Introduction

The accused is charged with the murder, on 2 March 2023, of Taha Sabbagh. A jury is shortly to be empanelled. The deceased was shot outside the Elite Fight Force gym at Carlingford Road Sefton at about 6.30 am, in the presence of a child. Twice a week the deceased drove to the gym for scheduled boxing lessons. The innocuous nature of his attendance at the gym, in the context of this investigation, has led the Crown to suggest that there is a possibility that the deceased was…

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 Pham

Details

AGLC: R v Pham [2024] NSWSC 1687
Case: [2024] NSWSC 1687
Decision Date: 18 November 2024

CaseChat Overview and Summary

The case of R v Pham involved a criminal trial where the primary issue was the admissibility of recordings obtained through a conditional surveillance device warrant. The accused, Pham, had refused to speak with the police and was being monitored as part of an investigation. The recordings were made prior to the commencement of the Enhanced Record of Interview Scheme (ERISA). The court was tasked with determining whether Pham's mild intellectual disability was relevant to the admissibility of these recordings. The trial judge had to weigh the circumstances surrounding Pham's disability and how it might have affected his capacity to understand and engage with the police during the surveillance.

The legal issues before the court revolved around the interplay between Pham's intellectual disability and the admissibility of the surveillance recordings. The defence argued that Pham's disability should be taken into account when assessing the fairness of the recordings and whether they were obtained in a manner that was just and appropriate. The prosecution, on the other hand, contended that the disability did not affect the validity of the surveillance warrant or the admissibility of the recordings. The court had to consider whether Pham's disability was a mitigating factor in the context of the evidence obtained through the surveillance and whether it impacted the accused's capacity to understand and respond to the police during the investigation.

In its reasoning, the court acknowledged that Pham's mild intellectual disability was a relevant factor in assessing the fairness of the surveillance. However, the court found that Pham's disability did not negate the validity of the warrant or the admissibility of the recordings. The court held that the disability did not impact Pham's capacity to understand and engage with the police during the surveillance, as the recordings were made in a public place and did not involve direct communication between Pham and the police. The court concluded that the disability did not render the recordings inadmissible, as the surveillance was conducted in accordance with the warrant and the legal standards for fairness and justice.

The court ultimately ruled that the recordings were admissible as evidence in the trial. The decision underscores the importance of considering individual circumstances, such as intellectual disability, when assessing the fairness of evidence obtained through surveillance. However, the court also emphasised that such factors do not automatically render evidence inadmissible, provided that the surveillance was conducted in compliance with legal requirements and standards.

Orders