Citation: R v Nehme, Price, Rahim, Taufahema and Rizk (No 5) [2023] NSWSC 933
Court: Supreme Court of New South Wales
Date: 24 February 2023
Judge(s): Button J
Background
One accused in a joint murder trial was arrested late at night in December 2019 in connection with a fatal stabbing that had occurred days earlier. After arriving at a police station shortly before midnight, police made multiple attempts to contact a lawyer on his behalf. None was available at that hour. A recorded interview commenced at 3:40 AM and concluded near 6 AM.
Before trial, the accused sought to exclude the recorded interview from evidence under s 138 of the Evidence Act 1995 (NSW). He argued both that police had acted unlawfully and that the interview had been conducted improperly. The jury was ultimately discharged before the recording was played, meaning the ruling remained "unfulfilled," but Button J delivered this written judgment to explain the reasoning behind his earlier oral ruling.
Legal Issues
- Whether police breached s 123 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) by failing to allow a reasonable period for the accused to contact a lawyer before commencing the interview
- Whether the two-hour time limit in s 123(7) of LEPRA applied where no lawyer had actually been contacted
- Whether police acted improperly by continuing to question the accused after he indicated he did not wish to answer questions, thereby impugning his right to silence
- If either unlawfulness or impropriety were established, whether the court should exercise its discretion under s 138 of the Evidence Act to admit the evidence nonetheless
Decision
On the lawyer access question, Button J accepted that s 123(7) of LEPRA, which imposes a two-hour limit, applies only where a lawyer has been successfully contacted and is therefore on the way. Because no lawyer was reached in this case, that time limit was not triggered. The real question was whether police had allowed a reasonable period for attempts to contact a lawyer, and the court found that they had.
The accused argued police should have waited until around 8 AM, contacted a lawyer at the start of business hours, and commenced the interview only after that lawyer arrived. Button J rejected this as unrealistic in the context of a serious murder investigation. Police had made numerous attempts to reach a lawyer, as well as a relative who might have assisted. The interview did not start until more than three and a half hours after arrival at the station and nearly four and a half hours after arrest. Those efforts and that delay were found to be reasonable. The accused had not established that the time spent was unreasonable, and no breach of LEPRA was made out.
On the right to silence, the court found, as a matter of fact after viewing the entirety of the recorded interview, that police had not persistently or improperly pressured the accused into speaking after he declined to answer questions. On the voir dire evidence, no impropriety was established on this basis either.
On the contingent discretion question, Button J went on to consider what would have occurred had either or both contraventions been established. He concluded that, even on that hypothetical, the profound gravity of the alleged offence and the significance of what the accused had said about it would have led him to admit the evidence in exercise of the s 138 discretion. He characterised any breach of the lawyer-contact provisions as reckless rather than deliberate (founded on misunderstanding of the legislation), while noting that impugning a right to silence would, by its nature, be deliberate.
Orders Made
• Ruling refusing to exclude the evidence of the recorded interview on 24 February 2023
Key Takeaways
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Under s 123(7) of LEPRA, the two-hour deferral time limit between contact and arrival of a lawyer is only engaged where a lawyer has actually been contacted. Where attempts to reach a lawyer are entirely unsuccessful, that limit does not apply and the governing standard is simply whether a reasonable period was allowed for attempts at contact.
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Reasonableness of the deferral period is an evaluative judgment on the facts. The Supreme Court found that over three and a half hours of attempts before commencing a serious murder interview, including multiple calls to lawyers and a relative, satisfied that standard.
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No requirement exists under LEPRA to defer a custodial interview until business hours so that a lawyer can more easily be reached. Such an obligation would, in the court's view, unreasonably impede the timely investigation of serious offences.
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Where a court undertakes a contingent analysis under s 138 of the Evidence Act, the gravity of the alleged offence and the significance of the evidence obtained are relevant considerations. The court found that both factors would have weighed heavily in favour of admission even if some contraventions had been established.
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Investigating police being mistaken about the legal requirements governing custodial interviews does not, without more, constitute deliberate or sinister conduct. Button J distinguished recklessness founded on misunderstanding from deliberate contravention of the legislation.
Legislation and Cases Referenced
Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 123
- Evidence Act 1995 (NSW), s 138
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
- R v Nehme, Price, Rahim, Taufahema and Rizk (No 4) [2023] NSWSC 932
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35