R v Nehme

Supreme Court of NSW|2024-03-01|Before: McNaughton J, Button JJ

JUDGMENT

This judgment explains the reasons for orders I made on Friday, 1 March 2024 following an application by the accused Joseph Nehme seeking the exclusion of certain portions of the telephone intercept material sought to be adduced by the Crown.
I was asked to rule on these proposed exclusions prior to 4 March 2024. I was provided with written submissions, and the parties agreed that it was appropriate to decide the matter on the basis of the written submissions without further oral argument. I was content with that course.
The accused faces a trial in the Supreme Court before myself and a jury, having been separated from a joint trial with his four co-accused on 31 October 2023.1 The trial of his four co-accused concluded before me with the delivery of verdicts on 21 December 2023. Two of the co-accused in that trial were Viliami Taufahema and Bilal Rahim. Before the matter came before me, at different times Bellew and Button JJ had presided over various pre-trial arguments and/or aborted joint trials, then including the current accused.
The jury in the accused's current trial was empanelled on 28 February 2024, and the evidence is expected to commence, following opening addresses, on 4 March 2024.
Mr Dalton SC, on behalf of the accused, contends that the Crown is seeking essentially to re-introduce into evidence several portions of telephone intercept material previously removed from the evidence by agreement, or following rulings by one of either Bellew or Button JJ (then presiding in the trial of the accused and his co-accused), and/or the portions should not be admitted because the probative value of those portions is outweighed by the danger of unfair prejudice to the accused. [1]

Item 164 (previously item 231 and item 166)

The first piece of evidence in contest is a portion of item 164 in the Master Chronology, being part of a telephone conversation between the accused and Mr Taufahema several hours before the killing of the deceased. I note that following receipt of the accused's written submissions, the Crown agreed to remove five lines from the material it was initially pressing. Those five lines (now removed) related to violence on the part of the accused. I further note that following receipt of initial submissions from the accused, reply submissions from the Crown, and reply submissions from the accused, the Crown has only now indicated that part of the impugned portion contains additional words which had not previously been indicated in the transcript provided to the Court and, I presume, to the accused. This is unfortunate, as the accused has not been given a chance to satisfy himself as to the version now apparently relied upon by the Crown, nor make submissions upon it.
The original version of the impugned portion is as follows: Taufahema: "Bro' she, she, she, she fucked, she's got my- she's the one that's got my fuckin' bike bro'." Nehme: "The Indian one has your bike aye? Yeah?" Taufahema: "Yeah, bro, they fuckin', they know each other." […] Taufahema: "Bro's, kick her in the face." Nehme: "Um, with, with Bob, um." Taufahema: "Yeah."
The proposed version now contended for by the Crown is as follows, with the additional words now relied upon underlined: Taufahema: "Bro' she, she, she, she fucked, she's got my- she's the one that's got my fuckin' bike bro'." Nehme: "The Indian one has your bike aye? Yeah?" Taufahema: "Yeah, bro, they fuckin', they know each other." […] Taufahema: " Bro's, I just want to kick her in the face bro, that's all I want." Nehme: "Um, with, with Bob, um." Taufahema: "Yeah."
As noted, the accused has not had an opportunity to make submissions about this latest version. Given the view I have come to it is not necessary for the trial to be delayed to give the accused an opportunity to make further submissions in relation to the latest iteration of the impugned portion of item 164.
As to the previous version, the accused contends that most of the additional conversation now sought to be led by the Crown was previously removed by agreement, save for the portion referring to "rips" - which was ordered to be removed by Button J in R v Nehme, Price, Rahim, Taufahema and Rizk (No 4) [2023] NSWSC 932 at [8]-[11]. I note that the Crown has also agreed to excise the reference to a "rip" (if that ruling by Button J is not otherwise binding because of s 130A of the Criminal Procedure Act).
As to the previous version, as noted, the Crown has already agreed to remove the five-line portion which related to violence on the part of the accused. As to both the previous version and the current version, the Crown submits that the portion is significantly probative to the Crown case in proving the mens rea for the charge of murder, namely, the accused's foresight of the possibility that really serious injury (grievous bodily harm) might be intentionally inflicted during the execution of the agreed enterprise. The Crown case is that the accused deliberately recruited and then waited for the arrival of Mr Taufahema at the crime scene because he perceived Mr Taufahema to be a man who would ensure the enterprise was successful, being a person willing to engage in violence should the need arise.
As to the previous version, the accused argued that one possible interpretation of the remaining impugned portion is that Mr Taufahema is suggesting that the accused kick a woman in the face, which on one interpretation is then agreed to by the accused. The accused submitted that this raises the potential bad character of the accused. The accused also suggests that it may be interpreted as Mr Taufahema suggesting that the woman deserves a kick in the face. It was argued that the different potential interpretations reduce the portion's probative value. It was also suggested that the probative value is further reduced as it suggests violence of a very different character to that alleged by the Crown in this trial and is otherwise highly prejudicial as it suggests an act of violence towards a female. It is submitted that it is otherwise irrelevant and/or any probative value is outweighed by the danger of unfair prejudice pursuant to s 137 of the Evidence Act.
In reply to the argument that the portion (on any view of what it contains) relates to violence of a very different character to that alleged by the Crown in this trial, the Crown submits that it is not incumbent upon the Crown, and is no part of its case, that the precise means or mechanism of infliction nor the nature of the grievous bodily harm was contemplated or foreseen.
Even assuming for present purposes that the correct version is that contended for now by the Crown, I am of the view that the probative value is limited given the nature and circumstances of the violence being discussed by Mr Taufahema in the impugned portion.
Further, even though the Crown submits that the current version makes clear that the call relates only to Mr Taufahema stating what he, Mr Taufahema, wants to do, I am of the view that the current version contended for by the Crown could still be regarded as the accused condoning or acquiescing to violence in a manner which is unfairly prejudicial to him because the violence in question relates to a markedly different context to that involved in this trial.
In my view, the probative value of this passage (in whatever form) is outweighed by the danger of unfair prejudice to the accused.
The portion of item 164 either in its original form or in its suggested amended form is excluded.

Item 194

The next portion in contest is a portion of item 194, a telephone call between the accused and Mr Rahim. Mr Rahim was the person tasked by the accused to pick up Mr Taufahema from an address in Pennant Hills, which was a long way from Mr Rahim's location.
The impugned portions are: Nehme: "[…] My mate; I do everything with this guy, bro; he's a fucking an-, he's a machine. He jus-." […] you need him for the job. He's a fuckin'; you know what I mean? This guy will fuckin'; he saved my life maybe three times."
The impugned passages were previously the subject of a decision of Bellew J (R v Nehme (No 4) [2022] NSWSC 202) following objection by Mr Taufahema. Justice Bellew determined, in relation to Mr Taufahema, that the probative value of the evidence was low and the extent it establishes a relationship between Mr Taufahema and the accused was limited. His Honour found that the danger of unfair prejudice was high, carrying with it a notion that Mr Taufahema is, generally speaking, prone to violence.
The accused contends that the ruling is binding in this trial pursuant to s 130A of the Criminal Procedure Act.
The Crown contends that pursuant to ss 130A(1) and (3) of the Criminal Procedure Act, it would not be in the interests of justice for the order to be binding in the trial against the accused.
I am not certain that s 130A applies in the current proceedings. Mr Nehme is the subject of a fresh indictment in different proceedings. Justice Bellew made his determination on an application by a different accused in relation to a different indictment (albeit related to the same incident and involving charges in the same terms).
Even if s 130A does apply, I am of the view that it would not be in the interests of justice for the order made by Bellew J to be binding in the trial against the accused alone because: 1. Justice Bellew's ruling was made following an application by Mr Taufahema on the basis that there was a high danger of unfair prejudice to Mr Taufahema; and 2. Mr Taufahema is no longer an accused in this trial and therefore any question of unfair prejudice to him is irrelevant.
Accordingly, on any view, it is appropriate for me to consider the question afresh, this time, in relation to the accused.
On behalf of the accused, it is contended that the portion raises the spectre of prior criminal conduct and good character is not being raised by the accused. Further, it is submitted that it is totally speculative as to what the accused means by the use of the word "machine", yet it has the very real danger of unfair prejudice as, while it may suggest efficiency or strength, it might also suggest violence.
As to the expression "he saved my life maybe three times", the accused submits that this too raises the spectre of potential prior criminal conduct, and the very real danger of unfair prejudice. The accused points to the "purely speculative" connotation that Mr Taufahema had previously used violence. Further, it is put that this is likely "exaggerated banter". It is contended that the lack of clarity in the portion reduces its probative value and increases the danger of unfair prejudice. The accused also points to a previous ruling in related (but different) conversations (between the accused and Mr Rahim, and the accused and Mr Taufahema) by Button J in R v Nehme, Price, Rahim, Taufahema and Rizk (No 4) at [5]-[11] where his Honour ruled that the danger of unfair prejudice outweighed the probative value of the evidence. In particular, his Honour pointed to the impugned passages he was considering as raising a readily available inference that the men were talking about committing other crimes together.
The Crown presses these portions for the same reasons as related to the previous item. It is evidence, the Crown says, of the accused's perception of Mr Taufahema and the reason he needed him for the "job". The Crown contends that the portion is significantly probative of the Crown case that the accused foresaw the possibility of the intentional infliction of grievous bodily harm.
Subject to two qualifications, I am of the view that the portion is significantly probative of the Crown case as it does go to the issue of the accused's perception of Mr Taufahema and why he was so keen to have him involved in the "job" and was prepared to wait for him. However, the portion of the passage where the accused says "I do everything with this guy, bro" and also the portion "he saved my life maybe three times" when read with the rest of the impugned passage may suggest that the accused has been criminally involved with Mr Taufahema, and had come to know of Mr Taufahema's machine-like qualities in the course of carrying out criminal activities with him. I am of the view that these two portions should be excised.
As to the argument made by the accused that the passage is open to different interpretations which reduce its probative value because the word "machine" could connote different meanings - ranging from efficient or strong to violent, I am not of the view that the range of potential meanings necessarily diminishes the probative value to any great extent. Further, I note, in particular, the passage immediately before the impugned passage which includes the accused saying to Mr Rahim: "get my mate; I'm telling you. Bro, what if he's [meaning the deceased] got boys or something there and we get fucked up". This passage indicates that "violent" is the most likely interpretation available when the passages are viewed in context. Further, given the quality being discussed is that of Mr Taufahema and not of the accused, there is no unfair prejudice to the accused.
Without those two portions, "I do everything with this guy, bro" and "he saved my life maybe three times", there is still sufficient probative value, in accordance with what the Crown seeks to prove, to allow the passage to be adduced in evidence but with the danger of unfair prejudice to the accused removed.
Once those two passages have been removed, the probative value of the portion is not outweighed by the danger of unfair prejudice. Subject to the excisions, the portion of item 194 is admissible.

Item 207

The final portion in contest is part of a telephone call between the accused and Mr Rahim, while Mr Rahim is waiting on a street in Pennant Hills for Mr Taufahema to come out of a house.
The portion is as follows: Nehme: "Don't tell him you've got gear." Rahim: "Huh?" Nehme: "Don't tell him you've got gear." Rahim: "Don't tell him?" Nehme: "Yea; he'll take it. Just tell him you left it you understand?" Rahim: "What do you mean he'll take it?" Nehme: "Huh?" Rahim: "What do you mean he'll take it? Aren't we doing him a favour and he's gonna fuckin' stand over me?" Nehme: "I'm just telling you as a mate. I'm being serious." Rahim: "Yea, but, why you, why you sending me shit cunts like that for?" Nehme: "He's not a shit cunt. This bloke's good [or he's a good bloke]. But if you were me, I'm just telling you; 'til he knows you; you're fucked. He doesn't know you; he knows me." (Emphasis added.)
Again, most unfortunately, since receiving the original submissions and the submissions in reply from the accused, the Crown now informs the Court that further listening has indicated additional or amended words in the impugned portion as appear underlined above. Again, the accused has not had an opportunity to address on these suggested amendments, but given the amendments are so minor, and the meaning of the passage does not change, I am of the view that there is no disadvantage to the accused in this instance.
The accused objects to this portion in which the accused is apparently warning Mr Rahim not to tell Mr Taufahema that he has drugs because Mr Taufahema might take them from him. The accused submits that this has nothing to do with the subject offence and has the danger of unfair prejudice because Mr Rahim interprets that as meaning Mr Taufahema will stand over him, one possible interpretation of which suggests that he might be threatening in such an endeavour.
The accused also submits that he understood this portion was removed by previous agreement, and also points to the passages of Button J's previous ruling referred to above.
The Crown submits that the impugned portion was excised by agreement following objection by Mr Taufahema only, and it was removed only on that basis.
The Crown contends that the portion has significant probative value in the Crown case for the same reasons as relied upon above - that is, it is probative of the accused's perception of Mr Taufahema and the mens rea of the offence charged in count 1.
The Crown further contends there is no danger of unfair prejudice given the reference to drug possession is that of Mr Rahim, not the accused. In addition, the reference to the possibility of "standing over" is solely in relation to Mr Taufahema and not the accused. Lastly, the basis for the impugned words having been excised from a previous version of the Master Chronology - namely the danger of unfair prejudice to Mr Rahim and Mr Taufahema - is no longer operative.
In reply, the accused submits that, in Mr Rahim's absence, the jury is left to speculate about the meaning of the words used and, in any event, the accused has agreed to the fact that he has pleaded guilty to an offence involving standing over the deceased, Luke Lembryk, to steal from him. I note that an agreed fact will be read to the jury outlining the accused's admission of certain facts to this general effect. The accused further contends that it is otherwise irrelevant and/or its probative value is outweighed by the danger of unfair prejudice.
In my view, the impugned portion has significant probative value, as outlined by the Crown. I am also of the view that the portion has some prejudice attached to it, given the discussion of drugs not only reflects Mr Rahim's involvement with drugs, but clearly shows that the accused has some real familiarity with drugs.
However, in my view, this prejudice does not amount to unfair prejudice in the context of the facts of the matter as a whole. This is because part of the underlying factual matrix of the allegation involves the deceased having possession of a large amount of illegal drugs and cash likely flowing from the sale of drugs. There will be other evidence of drug use and possession in the trial. This impugned discussion does not create unfair prejudice in the context of the matter as a whole. The probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused.
The portion of item 207 is admissible.

Endnote

R v Nehme; R v Price; R v Rahim; R v Rizk; R v Taufahema (No 4) [2024] NSWSC 451.

Amendments 07 May 2024 - Representation amended. 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: 07 May 2024

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