R v Price; R v Rahim; R v Rizk; R v Taufahema (No 6)

[2023] NSWSC 1663

Supreme Court

New South Wales

Medium Neutral Citation:

R v Price; R v Rahim; R v Rizk; R v Taufahema (No 6) [2023] NSWSC 1663

Hearing dates:

29 November 2023

Date of orders:

29 November 2023

Decision date:

29 November 2023

Jurisdiction:

Common Law

Before:

McNaughton J

Decision:

The Court makes the following order:

(1) The application for a Shepherd direction is refused

Catchwords:

CRIMINAL LAW – where application by accused seeking a Shepherd direction – whether it is an indispensable fact that the jury must find that the accused contemplated the offending would involve a knife – Crown not limited by way of a Shepherd direction – application refused

Cases Cited:

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

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. There is an application by the accused Price and the accused Taufahema that I should make a Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 direction (“Shepherd direction”), that is, that I should direct the jury that it is an indispensable fact that the jury must find that the accused contemplated that the offending would involve a knife.

2. I have received written submissions from counsel for both the accused Price, the accused Taufahema, and also from the Crown. I have considered all those very useful submissions closely. In my view, though, it is not appropriate to limit the Crown by way of a Shepherd direction in this case, for the following brief reasons.

3. The agreement came about, it is clear, in the context of Joseph Nehme recruiting people who were – it can be inferred at its highest – people he trusted. It is clear that the job for which they were recruited was a serious criminal enterprise. The evidence indicates that Mr Nehme had a weapon taped to him, and whilst that is not necessarily within the knowledge of all parties to the agreement from the beginning of the formation of the agreement, it does not mean that it is not a relevant matter that I can take into account in terms of indicating the seriousness of the venture.

4. The indication that Mr Nehme had a weapon taped to him indicates that a serious level of violence was contemplated. Just, though, because parties to the agreement equip themselves in this way, or one of them does, does not mean that it was an inevitable consequence that that was necessarily the way it was contemplated that the crime would be committed. It is also to be noted that those recruited by Mr Nehme, and Mr Nehme himself, were relatively young and relatively fit. Given the people recruited for this venture were apparently known well and trusted by Mr Nehme, there is a clearly available inference that all were apprised of the venture and none were being deliberately kept in the dark.

5. In my view, these factors in combination are sufficient to permit the Crown to put the case to the jury without there needing to be a direction that any intentional assault causing grievous bodily harm had to be foreseen or contemplated necessarily with a knife being the only mode of assault. In other words, there should not be a direction that it is an indispensable fact that the jury must find that the accused contemplated that the offending would involve a knife.

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Decision last updated: 06 May 2024