R v Price; R v Rahim; R v Rizk; R v Taufahema

[2023] NSWSC 1659

Supreme Court

New South Wales

Medium Neutral Citation:

R v Price; R v Rahim; R v Rizk; R v Taufahema [2023] NSWSC 1659

Hearing dates:

21 November 2023

Date of orders:

21 November 2023

Decision date:

21 November 2023

Jurisdiction:

Common Law

Before:

McNaughton J

Decision:

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

(1) The video recordings of the finding of the Pennant Hills bladed weapon are admissible

Catchwords:

CRIMINAL LAW – evidence – admissibility of evidence – video recordings of finding of a bladed weapon – evidence objected to by co-accused – s 135 Evidence Act 1995 (NSW) – probative value not substantially outweighed by the danger that the evidence might be unfairly prejudicial – evidence admissible against the accused Rizk

Legislation Cited:

Evidence Act 1995 (NSW), s 135

Cases Cited:

McNamara v The King [2023] HCA 36

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
K Ratcliffe (Crown)
T Quilter (Lisa Anne Price)
M Hobart SC (Bilal Rahim)
N Carroll (Sherene Rizk)
A Evers (Viliami Bui Taufahema)

Solicitors:
Solicitor for Public Prosecutions (Crown)
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):

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

Publication restriction:

No publication until the conclusion of the trial of Joseph Nehme

EX TEMPORE JUDGMENT (REVISED)

1. This judgment deals with the application by the accused Taufahema, that the video recordings of the finding of the bladed weapon and sheath found in the Pennant Hills property should be excluded pursuant to s 135 of the Evidence Act 1995 (NSW). I note that initially the objection was on the basis of relevance, but it has since been conceded that it cannot be said it is not relevant. I note that the Crown is not objecting on grounds of relevance but submits it is not relevant to its case and are not intending to tender it. If admitted though, the Crown indicates that, as against the accused Rizk, it would still make use of the weapon being available in the case against Rizk should it be admitted.

2. The objection on behalf of the accused Taufahema is now on the basis of s 135(a) of the Evidence Act that the Court should refuse to admit evidence on the basis that it its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to him.

3. In passing, I note whether or not the accused Taufahema was a party who could have properly made an objection as to relevance, as he initially did, I will leave to one side, as the question is academic in light of the concession made by the accused Taufahema. I also note that in practice this issue, is rarely, if ever, likely to arise.

4. In any event, in my view, the concession that the evidence is relevant to the accused Rizk's case is properly made. In her Electronically Recorded Interview with Suspected Person (“ERISP”), the accused Rizk states that the knife she taped to Joseph Nehme's back was a knife she wanted out of the house and she did not want her children to gain access to it. Mr Nehme, she says, had been storing it there.

5. The accused Rizk said it had a curved blade. I note that the Pennant Hills bladed weapon, also has a curved blade. The accused Rizk said it was bigger and different to a kitchen knife and more like a sword. That is also consistent with the Pennant Hills bladed weapon. It was also found within a residence attended by the person Mr Nehme within hours of the killing. It is clearly relevant in my view.

6. The first assessment I must make is an assessment of its probative value. Without the admission of this evidence, there is no other evidence of a bladed weapon, other than the blade that was found at the scene of the killing with blood on it. In her ERISP, the accused Rizk pointed to a tattoo depicting a curved bladed weapon behind her ear to help describe the weapon she taped to Mr Nehme’s back. While the accused Rizk can point to her tattoo to help her describe another type of bladed weapon, without the evidence of the Pennant Hills bladed weapon, that mere description does not assist her case to any great extent. The presence of a weapon that matches her description of a weapon at a house where Mr Nehme attended within only hours of the killing, together with the tattoo, is capable of supporting her account. It is clearly probative. The accused Rizk’s case is that the intent or foresight she had when she strapped the weapon to Mr Nehme was not the relevant intent or foresight to make out the charges against her.

7. I note, while the probative value is somewhat diminished by the fact that the sheath found near the bladed weapon was not mentioned by her, and also that the weapon was found a few days after the killing in a household occupied by a number of people, that does not diminish the probative value to any great extent.

8. I also take into account the call of 7 December 2019, the date of the killing, at 12:07am  where Mr Nehme suggests his "samurai thingy" has been left with the accused Rahim. The reference in that call does not alter my assessment of the probative value in any significant way. The reference in that call, and the surrounding circumstances of all the various residences that these men attended, means that that reference is too vague.

9. As to the failure by the accused Rizk in her ERISP to mention that the blade of the Pennant Hills bladed weapon is made up of two separate strips of metal with a gap in between, I am not of the view that this failure of description diminishes its probative value to any great extent.

10. The issue I must now turn to is whether the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused Taufahema. I note that I must find the evidence not only prejudicial, but unfairly prejudicial.

11. First, I note that there is reliable, that is, objective evidence –– that a bladed weapon was found at a house where the accused Taufahema and Mr Nehme had attended. It is not an account of someone, but it is reliable, objective evidence. Second, there is no DNA linking the accused Taufahema, Mr Nehme or the deceased to the bladed weapon found at Pennant Hills. I note that the Crown is not relying upon the evidence in its case against the accused Taufahema.

12. The essential argument made on behalf of the accused Taufahema that there is unfair prejudice is said to arise from the appearance of the knife, which is said to look menacing. It is also submitted that if Mr Nehme did have a machete-like object on him when he entered the deceased’s house with the accused Taufahema, it would be far easier for the jury to draw the inference that the accused Taufahema contemplated the possibility of the intention of infliction of grievous bodily harm.

13. It is now clear (as I have now heard the evidence of the pathologist on the voir dire) that the Pennant Hills bladed weapon was not used to inflict the fatal wound on the deceased. The only wound, as I understand it, that could be consistent with such a weapon is the wound to the tip of the one of the deceased's fingers, that was not a fatal wound. The evidence is also that the knife blade found at the scene could have inflicted all of the blade-related injuries on the deceased.

14. Given the accused Rizk's case was that a bladed weapon consistent with the description of the bladed weapon found at the Pennant Hills property was strapped to Mr Nehme, and thus likely concealed by a shirt or other garment, together with the inevitable inference that another weapon was used to inflict the fatal wound, I am not of the view that either the appearance of the knife or that it is possible it was still strapped to Mr Nehme under clothing during the break and enter is unfairly prejudicial.

15. I note that there is already evidence from a telephone intercept which, again, is not admissible against the accused Taufahema, that there was a weapon strapped to the back of Mr Nehme. Appropriate directions can be made to ensure the jury will restrict the use of the evidence of the Pennant Hills bladed weapon to the accused Rizk's case.

16. I note that Gordon and Seward JJ stated in the recent High Court case of McNamara v The King [2023] HCA 36 at [104]:

“[T]he circumstances in which the discretion will be exercised to refuse to admit evidence in support of a defence are ‘few’, ‘exceptional’ and ‘will necessarily be rare’."

(Footnotes excluded.)

17. This passage confirms that the existence of the discretion at common law to refuse to admit evidence coheres with the duty of the trial judge to provide an accused with a fair trial (at [109]). As also stated by their Honours at [109], "the existence of the discretion at common law is consistent with s 135 [of the Evidence Act].”

18. In my view, given the lack of any link with the accused Taufahema by way of forensic evidence, the lack of reliance on the evidence by the Crown as against the accused Taufahema, and in light of appropriate directions I can make, making it clear it is only admitted in the case of the accused Rizk, the prejudice, if any, is minimal and does not amount to unfair prejudice. Accordingly, I admit the video recordings of the finding of the bladed weapon in Pennant Hills in the case of the accused Rizk.

**********

Decision last updated: 06 May 2024