Nehme v R

The Crown Case

1. The indictment filed before the trial judge contains six counts, three of which concern the applicant, namely, counts 1, 3 and 5. Count 1 charges the applicant and three others, namely Lisa Price, Bilal Rahim and Viliami Taufahema, with the murder of the deceased at Condell Park on 7 December 2019. Count 3 charges the same four persons with an offence under s 98 of the Crimes Act 1900 namely assaulting the deceased with intent to rob him and, at the time of the assault, wounding him whilst being in company. Count 5 charges the same four persons with an offence under s 112(2) of the Crimes Act 1900 namely breaking and entering and committing a serious indictable assault, namely assaulting the deceased's mother with intent to commit a serious indictable offence of the robbery of the deceased in circumstances of aggravation, namely being in company. A fifth person, Sherene Rizk, is also charged on the indictment. The applicant has pleaded guilty to count 5.
2. The Crown case statement alleges that, sometime between 2.37am and 2.44am on 7 December 2019, the deceased was stabbed at his home and died shortly thereafter. The Crown alleges that this occurred in circumstances where two assailants, the applicant and Taufahema, had entered the premises as part of a plan with the other two offenders, to break into the home that the deceased shared with his mother and steal his cash.
3. The Crown case alleges that it was either the applicant or Taufahema who stabbed the deceased with "each nevertheless criminally responsible for the acts of the other … causing the deceased's death". The Crown puts its case against the four accused by way of "constructive murder" (or felony murder), in that the acts causing the death were alleged to have been "done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years" (Crimes Act, s 18(1)(a)). In this case, the Crown alleges that the relevant crime punishable by imprisonment for life or 25 years is count 3 of the indictment. The Crown contends that all four of the accused were "engaged in a joint criminal enterprise to rob the deceased of his cash, it being within contemplation that the deceased might be assaulted (with an intent to rob) and within contemplation that the deceased might be wounded". The maximum penalty for an offence under s 98 is 25 years' imprisonment. In light of the applicant's plea of guilty to count 5, it seems that the principal issue on the Crown case concerns the applicant's knowledge of the potential for the deceased to be wounded during the course of the break in at his home.
4. One part of the Crown case statement contends that, during an intercepted telephone call on 7 December 2019, the applicant reported to the co-accused Price, who did not attend at the premises on the night the deceased died, that his "[mate] … ran back to his room, grabbed one, but he stabbed him" which is capable of being an admission that the applicant was present at the time of the stabbing, but that he did not stab the deceased. Another part of the Crown case statement alleges that on 8 December 2019, police intercepted a call between the applicant and an associate in which the applicant is alleged to have said "I stabbed a bloke, do you know what I mean". On the hearing of this application, Senior Counsel for the applicant advised the Court that the transcription of this conversation was challenged.
5. The Crown case statement also notes that when crime scene officers attended the home after the murder, a knife was found in front of the lounge chair. It was missing its handle and was covered in blood.
6. According to the Crown at around 3.00am on 7 December 2019 the applicant along with the co-accused Rahim and Taufahema attended the Lidcombe Hotel. They left at around 3.27am. Closed Circuit Television ("CCTV") footage was obtained showing their attendance.
7. The statement of one of the detectives described what was depicted in the CCTV footage as follows: "226. The footage depicts Rahim's vehicle entering the carpark shortly after leaving Westside Petroleum. Nehme [sic ?Rahim] and Taufahema alight and meet with Nehme who entered the carpark on foot. Taufahema and Nehme walk out of sight and Rahim enters the hotel through the rear entrance. The trio are seen on the hotel's limited CCTV to re-group in the poker machine area for a period of time before leaving through the rear door of the hotel (that which Rahim entered via). During this time, the parties are observed to go into the toilet and Taufahema puts a t-shirt on over the singlet he was wearing. As they leave, Taufahema is seen wearing the shoes that [are] later seized and found to have [the deceased's] blood on them. 227. As [they] walk down the rear steps, Taufahema is seen to remove something from his pants pocket and discretely show it to Nehme and Rahim. The group then departs with Rahim and Taufahema seen entering Rahim's vehicle, which drives away, and Nehme walking out of sight."
8. The CCTV footage also appears to show the applicant walk over to the bin area of the carpark after Taufahema showed the group what was in his pockets.

Application to the Trial Judge

1. The evidence the subject of the applicant's notice of motion before the trial judge is of a conversation between the co-accused Rahim and two detectives following his arrest. According to the Detective's notes, Rahim was asked "[d]o you know where the knife is". He replied that it was only the handle of the knife and that "[i]t's in the bin at the pub", being a reference to the Lidcombe Hotel. The police officer's notes record that Rahim stated as follows: "When we left the pub we walked through the carpark and Bui [ie Taufahema] had it down the front of his pants. He pulled it out and Joey [the applicant] blew up and said, 'why the fuck do you still have that?' There were some bins in the carpark and Joey put it inside the bin down beside the rubbish."
2. Rahim is also recorded as saying that the bins were full, so they might have been emptied soon after the knife was left inside them. The police attended at the Lidcombe Hotel but were unable to find the knife handle.
3. Senior Counsel for the applicant advised the trial judge that he sought to elicit evidence of these statements made by Mr Rahim during the cross examination of the Detective who recorded the conversation. Prayer 1 of the notice of motion sought leave to do so. In the event that application was not granted, prayer 2 sought an order that his client be tried separately from the other accused (so that presumably the evidence could be led). The Crown Prosecutor advised his Honour that it was the Crown's view that s 281 of the Criminal Procedure Act 1986 ("CPA") precluded the evidence from being adduced in the Crown case as evidence against Mr Rahim but that there were otherwise compelling reasons to have all four accused tried together. Not surprisingly Counsel for Rahim (and Taufahema) objected to the evidence being adduced.

His Honour's Reasons

1. His Honour accepted that s 281 of the CPA precluded the Crown from adducing the evidence of the conversation noted above against Rahim, but doubted whether it was applicable to an attempt by the applicant to adduce it in his case. However, his Honour did not resolve that issue because his Honour determined to exclude the evidence of the conversation pursuant to s 135 of the Evidence Act 1995 on the basis that its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial. His Honour identified the effect of the evidence as the applicant taking the knife handle from Taufahema and disposing of it in the bin. His Honour noted that it was "difficult to see how, in an exculpatory sense, that evidence goes to either of the facts in issue which have been identified", namely, whether the applicant was not responsible for stabbing the deceased and not part of any joint criminal enterprise.
2. Having concluded that the evidence would be excluded, his Honour then considered the application for a separate trial. His Honour then addressed the principles relevant to a separate trial and determined the application adversely to the applicant. His Honour noted the general proposition that crimes which are alleged to have been committed jointly should be prosecuted in a joint trial. His Honour did not accept that there was a real risk of positive injustice being visited upon the applicant on a separate trial, concluding as follows (at [34]): "For the reasons that I have already given, the probative value of the evidence is low. Indeed, bearing in mind the facts in issue to which the evidence is said to go in [the applicant's] case, my view is that its relevance is tenuous at best. In those circumstances, there is no injustice in the accused not being permitted to lead the evidence, particularly in circumstances where, as I understand it, the Crown will adduce evidence in Exhibits B and C in the trial, on the basis of which it will be open to [the applicant] to argue that certain inferences ought be drawn from what is shown on that footage."
3. The reference to Exhibits B and C in this passage is to the CCTV footage described above. As I understand it, the inference being referred to is an inference that, at the time the footage was taken, Taufahema was in possession of a knife handle.
4. Otherwise, I note that the premise of his Honour's judgment and the premise of this judgment is that the evidence of Rahim's statement could be adduced in admissible form at a separate trial of the applicant. At the very least this could be done by subpoenaing Rahim after his own trial was concluded and, if he denied making the statements, seeking leave to cross‑examine him under s 38 of the Evidence Act.

Application for Leave to Appeal

1. The trial judge's decision to decline to order separate trials was discretionary. It was accepted by the applicant that to obtain a grant of leave and a reconsideration of his Honour's discretionary decision he must (at least) demonstrate an error of the kind stated in House v The King (1936) 55 CLR 499. The relevant principles governing the exercise of his Honour's discretion in the context of this case can be shortly stated.
2. First, numerous reasons of principle and policy suggest that persons charged with committing an offence jointly ought be tried together and that is so even where accused persons seek to cast the blame upon each other: Webb & anor v The Queen (1994) 181 CLR 41; R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 at [61] to [68] Second, if there is a real risk a joint trial would cause positive injustice to an accused then a separate trial should be ordered: Collie, Kranz & Lovegrove v R (1991) 56 SASR 302 at 310; R v Patsalis & Spathis [1999] NSWSC 649; (1999) 107 A Crim R 432 at [13]; R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 at [62]. In this case, the positive injustice is said to be an inability to adduce exculpatory evidence. On its face it does not appear to be a case where the alleged injustice or prejudice, if found to exist, could be cured by a direction.
3. In their amended form, the applicant's three grounds of appeal are as follows: "1. s 135 does not apply to an associated defendant in a joint trial who is in fact not a party in another accused's trial. 2. His Honour erred by finding the evidence was of low probative value and/or that it's probative value is substantially outweighed by the danger that the evidence might be unfairly [prejudicial] to the co-accused Rahim. 3. His Honour erred by finding there was not a real risk of positive injustice being visited upon the applicant in a joint trial."
4. The first of these grounds can be disposed of briefly. As noted, this application is not a means by which the applicant can challenge his Honour's exclusion of the anticipated evidence of Rahim (or the conversation between Rahim and the police). A complaint that his Honour did not have the power under s 135 of the Evidence Act 1995 to exclude the evidence could only be relevant to a challenge to the rejection of the evidence. In any event this ground is foreclosed by the decision of this Court in Rogerson v R; McNamara v R [2021] NSWCCA 160 at [514] to [523] and [540].
5. This reasoning also applies to the second limb of the second ground, (ie the complaint that his Honour erred by finding that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the co-accused Rahim). That aspect of ground 2 can only be referable to his Honour's decision to exclude the evidence in the trial due to start before his Honour. That decision is not the subject of the appeal. Instead, the exclusion of that evidence in that trial is the starting point for the subject matter of this appeal, namely the trial judge's refusal to separate the trial of the applicant from his co-accused.
6. The balance of the second ground and the third ground can be considered together. Although his Honour's determination that the evidence of the conversation attributed to Rahim had low probative value was part of the reasons for excluding it, it was also an important part of the reasons for concluding that there was not a real risk of positive injustice being visited upon the applicant if he was tried jointly with the other co-accused. Further, I will assume in the applicant's favour, that it is for this Court to consider its probative value rather than considering whether the trial judge's assessment of its probative value was open.
7. At least in the context of the application for a separate trial, I understand his Honour's assessment that the probative value of the evidence was low as being referable to its potential to exculpate the applicant and not its capacity to inculpate Taufahema per se (see [18]). It must be remembered that if there is a separate trial of the applicant Taufahema will not be a defendant.
8. The essence of the submission on this application was that the anticipated evidence from Rahim was probative of Taufahema having possession of the knife after the stabbing of the deceased and that in turn was "probative of [his] being the stabber and not the applicant'. [1] However, I accept that the Crown's contention that that chain of reasoning does not undermine the conclusion that the evidence was of low probative value in the sense just noted. The evidence does not address at all the Crown's contention that the applicant was part of a joint criminal enterprise to rob the deceased with the contemplation that he might be assaulted and wounded. To the contrary, the statement that Rahim attributed to the applicant is very much capable of incriminating the applicant in the sense of demonstrating that he was aware the deceased had been stabbed and, in turn, he was aware that it was at least a possibility during the break in. The evidence is also capable of showing that Taufahema acted under the applicant's direction.
9. Insofar as this evidence is said to rebut so much of the Crown case that suggests or leaves open the possibility that it was the applicant who stabbed the deceased, this must be considered in the context of the Crown's case that there was a preconceived plan to rob the deceased which was put into effect by both the applicant and Taufahema breaking into his residence during which time one of them stabbed him. The anticipated evidence from Rahim that, at Lidcombe Hotel around an hour later, Taufahema had physical possession of the knife handle and, on showing it to the applicant, the applicant "blew up" and admonished Taufahema for not having already disposed of it, can at best provide only marginal support for the proposition that earlier that night Taufahema wielded the knife and not the applicant as opposed to say, a scenario in which the applicant wielded the knife but lost the handle and Taufahema retrieved it of his own accord or under the applicant's direction. At the risk of repetition, at least for the purpose of the application for a separate trial, the probative value of the evidence must be considered having regard to its potential to exonerate the applicant. The contrast between the present context and say the Crown adducing evidence of the possession of a murder weapon by an accused an hour after the death of the deceased is obvious.
10. It was further submitted on behalf of the applicant that: "…the applicant being deprived of this evidence would pose a significant risk of a positive injustice in the applicant's case at trial as this evidence corroborated by the CCTV footage with the evidence of the deceased's blood on the top of the shoes that the co-accused Taufahema was apparently wearing on the morning of the offence provides strong support for the argument that the co-accused was the stabber. As it currently stands in a joint trial without this evidence the co-accused Taufahema can argue that there is no evidence that he had possession of the knife or its handle at any time relevant to the offence. In all the circumstances that would be very unfair to the applicant and it is submitted the applicant should be granted a separate trial accordingly so as to be able to adduce this evidence."
11. Contrary to the concluding part of this submission, the material described in this paragraph, namely the CCTV footage and the blood found on the top of the shoes that Taufahema wore, is evidence that he had possession of the knife handle and the knife prior to being at the Lidcombe Hotel (and also evidence that he stabbed the deceased). This evidence has the added advantage for the applicant that it does not include evidence of incriminatory statements of the kind attributed to him by Rahim.
12. In this regard, even if I accepted the applicant's submission that, in a narrow sense, the anticipated evidence from Rahim had a higher probative value in demonstrating that Taufahema, and not the applicant, stabbed the deceased, with the result that I had to exercise the discretion whether or not to order a separate trial afresh, I would nevertheless not do so. This is because, for the reasons already stated, the adducing of that evidence would on my assessment be very much adverse to the applicant in that it would implicate him in the joint criminal enterprise alleged by the Crown and do so in circumstances where the point he seeks to make, namely Taufahema's possession of the knife, can be advanced through the CCTV footage and the evidence of the blood stains on Taufahema's shoes. There is not a risk of injustice in denying to the applicant a separate trial in order to adduce evidence that is strongly likely to advance and not detract from the prosecution case against him.
13. It was for these reasons that I joined in the order that leave to appeal be refused.
14. WRIGHT J: The reasons of the Chief Judge accurately reflect my reasons for joining in the order refusing leave to appeal.
15. WILSON J: I joined in the order of the Court for the reasons expressed by the Chief Judge at Common Law.

Endnote

1. Applicant's submissions at [34]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2024