R v Price; R v Rahim; R v Rizk; R v Taufahema (No 5)

[2024] NSWSC 452

Supreme Court

New South Wales

Medium Neutral Citation:

R v Price; R v Rahim; R v Rizk; R v Taufahema (No 5) [2024] NSWSC 452

Hearing dates:

28 November 2023

Date of orders:

28 November 2023

Decision date:

06 May 2024

Jurisdiction:

Common Law

Before:

McNaughton J

Decision:

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

(1) The application of the accused for a verdict of not guilty by direction to the charge of murder is refused

Catchwords:

CRIMINAL LAW – where accused seeking a verdict of not guilty by direction to a charge of murder – where applicant contends the Crown cannot prove the count through the least demanding pathway, extended joint criminal enterprise – application refused

Cases Cited:

Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410

Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51

Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397; (1989) 43 A Crim R 1

The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13

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

JUDGMENT

1. On 28 November 2023, at the close of the Crown case, the accused Lisa Price (“the applicant”) sought a verdict of not guilty by direction in relation to the charge of murder. It was contended that the Crown could not establish the count of murder through the least demanding pathway, being extended joint criminal enterprise. The application focussed on the foresight of the applicant at the time of her participation in the joint criminal enterprise.

2. I came to the view that no verdict by direction should be made. These are the reasons for that decision.

3. It is only open to me to direct a verdict of not guilty if I come to the conclusion that there is a defect in the evidence such that, taken at its highest, the evidence will not support a verdict of guilty: Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 at 214. In a circumstantial case (as this is), this exercise involves all available inferences being drawn in favour of the Crown: Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397; (1989) 43 A Crim R 1; Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410. I also keep in mind the important principle applicable to all circumstantial cases conveniently set out in The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48]:

“Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.” 

4. The Crown case is that a plan to rob or steal cash from the deceased, Luke Lembryk, was suggested by the applicant to Joseph Nehme on the night of 6 December 2019. The applicant and Mr Nehme discussed the plan at the house of co-accused Rizk, at least partly in the accused Rizk’s presence. The applicant was very short of money at that time and was facing the possibility of eviction. The applicant had become aware of the deceased having a large amount of cash (in the realm of $10,000 to $20,000) at his house in Condell Park when she took part in a Tinder date with the deceased, together with another friend, SG, [1] in August of that year. SG and the applicant had consumed cocaine with the deceased, and he had later shown them a large bundle of cash.

   1. In relation to whose name there is a non-publication order.

5. Late in the evening of 6 December 2019, Mr Nehme set about finding men to help him undertake the “job” and found the co-accused Rahim and Taufahema who later attended the deceased’s house, or at least its vicinity, with him. Prior to leaving for the “job”, Mr Nehme indicated, possibly in the presence of the applicant, that he had his “thing taped” to him, so he was “ready”.

6. In the course of the entry to the house by two of the men, contended to be Mr Nehme and the co-accused Taufahema, the deceased was stabbed a number of times, with one wound proving fatal. The deceased’s mother was assaulted during the time the men were in the house.

7. The evidence largely consists of telephone intercepts, phone downloads, and CCTV footage, with a limited amount of evidence provided by civilian and police witnesses, including forensic evidence from the scene, and other related premises.

8. Evidence capable of proving the applicant’s foresight as to the possibility that intentional grievous bodily harm may be committed during the course of the agreed criminal enterprise of robbing or stealing from the deceased includes:

1. the applicant’s awareness;

1. from her physical proximity to phone calls made by Mr Nehme on the evening of the alleged offending, as well as her offer to collect one of the co-accused, Mr Taufahema – that there was more than one man involved in the plan to enter the deceased’s property;

2. that there was a large amount of money at the deceased’s property, particularly in his bedroom;

3. that there was likely to be another person at the deceased’s property;

4. that Mr Nehme had his “thing taped” and was “ready”;

5. that the deceased was tall; and

2. in a phone call after the stabbing, the applicant indicated no surprise that a person had been stabbed.

9. Inferences available from these facts include that given the plan to rob or steal from the deceased emanated from her, and she was very short of money, the applicant would be keenly interested to know how the plan was to be executed, and foresaw, or contemplated that the intentional infliction of grievous bodily harm might be inflicted.

10. In all of the circumstances, it is open to the jury to find that the applicant had the requisite foresight.

11. Drawing all of the available inferences at their highest in favour of the Crown, I am of the view there is a sufficient case to go to the jury. The question of the applicant’s foresight is very much a jury question.

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Endnote