R v Nehme (No 4)

Citation: R v Nehme (No 4) [2024] NSWSC 516
Court: Supreme Court of New South Wales
Date: 6 May 2024
Judge: McNaughton J

Background

The accused faced trial for the murder of the deceased, who was stabbed in the early hours of 7 December 2019 during what the Crown alleged was a planned robbery of cash and drugs at the deceased's home. The deceased's mother, Robyn Bradley, was present in the home at the time and gave a police statement later that day. Ms Bradley subsequently died from cancer, making her an unavailable witness within the meaning of the Evidence Act 1995 (NSW).

The defence sought to adduce paragraph 30 of Ms Bradley's statement, which contained representations about the deceased's involvement in drug dealing and conversations she had with him about it. The defence also sought to lead evidence of the deceased's 2014 convictions for drug supply and dealing with proceeds of crime. The Crown opposed both applications.

The significance of the disputed evidence was its potential to support a defence inference that the deceased had concealed a knife in his bedroom to hide evidence of drug dealing from his mother, which in turn bore on whether the accused foresaw the possibility of serious harm being inflicted during the break-in, relevant to joint criminal enterprise murder liability.

Legal Issues

• Whether paragraph 30 of Ms Bradley's police statement was admissible, either for a non-hearsay purpose under section 60 of the Evidence Act or as an exception to the hearsay rule under section 65
• Whether the deceased's 2014 convictions for drug supply and dealing with proceeds of crime were relevant and admissible
• Whether the Statement of Facts relating to those convictions should also be admitted

Decision

Issue 1: Relevance of the disputed evidence

McNaughton J was satisfied that whether the deceased armed himself with a knife from his bedroom before his death was a fact in issue at trial (at [13]). Telephone intercept evidence, already before the jury, was capable of supporting an inference that the deceased retrieved a weapon from his room (at [14]). The evidence in paragraph 30, if accepted, could rationally affect the jury's assessment of whether the deceased had an unfamiliar knife in his bedroom and whether he retrieved it prior to his death (at [16]). This, in turn, bore on whether the accused foresaw the possibility of serious intentional harm being inflicted during the break-in, grounding joint criminal enterprise murder (at [16]).

Issue 2: Admissibility of individual representations in paragraph 30

Following the approach in Sio v The Queen (2016) 259 CLR 47, McNaughton J analysed each representation in paragraph 30 individually (at [19]). Ms Bradley's expression of personal concern was admitted under section 65(8) as proof of her feeling, not as proof that the deceased was actually selling drugs (at [21]). Her representations about being told of the deceased's drug dealing by a third party, CS, were admitted under section 65(8) to prove that she was told this information, but not to prove the deceased was in fact dealing (at [23], [25]). Her statement to the deceased that she would report him to the police was admitted under section 65(8) to prove that she conveyed this to him, and was relevant to establish a motive for the deceased to conceal drug-related items from her (at [32]-[34]). Her statement that the deceased was "being stupid" was also admitted on the basis contended by the defence (at [35]). The court noted that limiting directions to the jury under section 136 of the Evidence Act may be appropriate for several of the representations (at [21], [25], [30]).

Issue 3: The deceased's 2014 convictions

The court held that the deceased's February 2014 convictions for two counts of supplying cocaine and one count of dealing with proceeds of crime were relevant and admissible, noting that they were supported by circumstantial evidence independent of paragraph 30 which pointed to the deceased's involvement in drug dealing (at [18], [36]). The Statement of Facts relating to those convictions was not admitted, as the court could not identify any further relevance in putting that document to the jury, and the defence ultimately did not press for its inclusion (at [36]).

Orders Made

• Paragraph 30 of the statement of Robyn Bradley dated 7 December 2019 (other than the last two sentences) is admissible.

Key Takeaways

• Under section 65(8) of the Evidence Act 1995 (NSW), a representation made by an unavailable witness and heard by the person to whom it was made (here, the officer who took the statement) may be admissible for its truth, even where the representation contains embedded third-party information, provided the court carefully delineates what the representation does and does not prove (at [21]-[33]).

• Admissibility of previous representations must be assessed on an individualised, representation-by-representation basis, consistent with the approach confirmed in Sio v The Queen (2016) 259 CLR 47, rather than by treating a passage of a statement as a single undifferentiated whole (at [19]).

• Evidence of a deceased victim's prior drug convictions can be relevant and admissible where they support a defence inference about the victim's behaviour immediately before the offence, provided that relevance to a fact in issue is clearly established (at [16], [36]).

• Where representations are admitted for a limited purpose under section 65(8), the court flagged that limiting directions to the jury under section 136 of the Evidence Act may be appropriate to prevent the evidence being used beyond those permitted purposes (at [21], [25], [30]).

• A statement of facts accompanying prior convictions is not automatically admissible alongside those convictions; the party seeking its admission must identify independent relevance beyond that already established by the convictions themselves (at [36]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), pt 2, ss 55, 60, 65, 136

Cases
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32