Citation: R v Nehme, Price, Rahim, Taufahema and Rizk (No 4) [2023] NSWSC 932
Court: Supreme Court of New South Wales
Date: 27 February 2023
Judge(s): Button J
Background
This judgment is the fourth in a series of pre-trial rulings arising from a murder trial involving five accused. The Crown alleged that the murder occurred in the early hours of 7 December 2019. The Crown's case rested on the doctrines of extended joint criminal enterprise and being an accessory before the fact, combined with constructive murder.
The court had previously addressed various aspects of the Crown case in three earlier judgments. This fourth judgment explains rulings Button J made on 27 February 2023 concerning the admissibility of discrete portions of intercepted digital communications sought to be tendered by the Crown.
Button J noted at the outset that the rulings were contingent in nature, capable of being revisited during trial, and were never ultimately given effect because the relevant evidence was never placed before the jury. The judgment is accordingly brief.
Legal Issues
- Whether specific intercepted conversations were relevant under s 55 of the Evidence Act 1995 (NSW)
- Whether the probative value of each item was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW), such that exclusion was required
- Whether an intercepted conversation containing an allegedly ambiguous admission of stabbing was admissible, and on what terms
Decision
Rows 154 and 161 (excluded): Two conversations between two of the accused, recorded on 5 and 6 December 2019, indicated the men were discussing crimes committed together for financial gain. The Crown tendered these not as direct evidence of the offence but as relationship evidence. Button J accepted the conversations were relevant under s 55, but excluded them under s 137. Several factors pointed to prejudice outweighing probative value: it was undisputed that the two men had attended the deceased's home to commit a financially motivated offence; pleas of guilty had been foreshadowed or entered; and presenting the offending as part of a broader system of criminal activity risked generating disproportionate prejudice in the minds of jurors in a murder trial.
Row 166 (partially excluded): A conversation between two other accused on 6 December 2019 was largely agreed to be admissible. The parties had resolved most disputes, subject to two references to "rips" (slang for robbing drugs or money from someone thought to possess them). Button J excluded those contested portions under s 137, finding they carried even greater potential for prejudice than the already-excluded material.
Row 168 (admitted): A further conversation between two accused, commencing at 7:21 PM on 6 December 2019, stood in a different category. Its most prejudicial portions had been excluded by agreement. Critically, it was temporally proximate to the alleged murder and demonstrated the state of mind of the participants at a relevant time, bearing directly on the foresight questions central to extended joint criminal enterprise. One passage indicated a willingness to act that night if money was available; another provided evidence about how a job could be carried out, including potential use of violence and weapons. Button J found that the probative value substantially exceeded the remaining prejudicial risk, and that any residual prejudice could be managed by appropriate directions.
Row 295 (admitted): This conversation occurred after the death and involved three accused. Senior counsel for one accused argued irrelevance and, alternatively, exclusion under s 137. Button J rejected both submissions. The conversation was found to contain an inference that one accused described the "rip off" as having gone badly wrong. Another accused's response, calm and unreactive, was treated as having significant probative value on the question of her prior knowledge and state of mind. Arguments that her calm response could be explained by her having been informed of events by a third party in the interim were characterised as matters for the jury rather than the court. Row 332 (admitted with qualification): This conversation from 8 December 2019 contained a disputed passage that the Crown contended included an admission of stabbing. Button J described the crucial portion as "pretty unclear and very ambiguous" after listening to it personally. On the basis that a jury member could potentially interpret the sounds as the alleged admission, the low threshold of relevance under s 55 was satisfied. However, to prevent a contested interpretation being improperly embedded in jurors' minds, the transcript provided as a memory aid was to omit the disputed words. The ruling was expressed tentatively, given that defence counsel had foreshadowed possible expert evidence on the audio.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), the court weighed the probative value of each intercepted conversation individually, finding that contextual relationship evidence could still be excluded where its prejudicial effect in a murder trial was not adequately offset by its utility, particularly where the underlying facts were not in dispute.
- Temporal proximity to the alleged offence and direct relevance to the mental elements of extended joint criminal enterprise both increased the assessed probative value of digital intercepts, tipping the s 137 balance toward admission for Row 168.
- Post-offence conduct by an accused, including a notably calm and unreactive response when told of a killing, can carry significant probative value on questions of prior knowledge and state of mind, with competing innocent explanations going to weight rather than admissibility.
- Where a potentially admissible audio passage is genuinely ambiguous, the Evidence Act s 55 threshold can still be met if a listener could reasonably interpret the sounds in a probative way, but practical measures (such as omitting contested words from a jury transcript used as a memory aid) can address residual prejudice under s 137.
- Button J noted in the conclusion that the High Court, shortly after these rulings were made, clarified the law on elements relevant to the Crown's case, potentially undermining some of the reasoning about relevance, probative value and prejudice that underpinned these decisions, a further reason the rulings had a contingent character.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 137
Cases
- R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202
- R v Nehme, Price, Rahim, Taufahema and Rizk (No 2) [2023] NSWSC 843
- R v Nehme, Price, Rahim, Taufahema and Rizk (No 3) [2023] NSWSC 844