R v Nehme

Supreme Court of NSW|2024-03-28|Before: McNaughton J

Introduction

On 28 March 2024, at the end of the cross-examination of the accused, and prior to re-examination, Mr Dalton SC, on behalf of the accused, made applications as follows: 1. To adduce evidence of the character of the accused in a particular respect; and 2. To adduce evidence in relation to the results of the charges involving the co-accused, as well as information about a close associate of the accused, Mr Habib, who was initially charged but whose charges were discontinued.
The application in relation to character was ultimately not pursued.
The applications in relation to the results of the charges involving the co-accused and Mr Habib were ultimately cast as seeking to adduce evidence in relation to the following: 1. Viliami Taufahema's decision not to give evidence in his trial or raise self-defence; 2. The jury verdicts in the trials of co-accused Mr Taufahema, Bilal Rahim and Sherene Rizk; and 3. The decision of the Director of Public Prosecutions to discontinue proceedings against Mr Habib.
After receiving written submissions and hearing oral argument, apart from one application which was not ultimately pressed, I ruled that none of this evidence was admissible. I now provide the reasons for my rulings.
The basis upon which Mr Dalton submitted all this evidence to be admissible was s 108A(1) of the Evidence Act 1995 (NSW). That section relevantly provides: 108A Admissibility of evidence of credibility of person who has made a previous representation (1) If - (a) evidence of a previous representation has been admitted in a proceeding, and (b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding, credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility.

Submissions

Mr Dalton sought to lead evidence from Mr Taufahema's trial that Mr Taufahema did not adduce evidence, including any evidence that he acted in self-defence. He also sought to lead evidence of Mr Taufahema's conviction for murder. All this evidence was said to be admissible pursuant to s 108A of the Evidence Act because it had been put to the accused in cross-examination that he and Mr Taufahema had put their heads together to concoct a false account of self-defence when the accused and Mr Taufahema met again at Westside Petroleum shortly after the stabbing, in part to provide an explanation to Lisa Price who had given the accused the "job" of robbing or stealing from the deceased.
The relevant previous representation was said to be that: "in speaking to Mr Taufahema at the petrol station and thereafter, the account that [the accused] gave to Ms Price […] was a result of them putting their heads together to create a defence of self-defence".
Mr Dalton submitted such a representation had been made through the Crown's cross-examination of the accused: that is, by the Crown putting to the accused that he had spoken to Mr Taufahema at the petrol station and during that conversation they had agreed upon creating a defence of self-defence.
The relevant later telephone intercept between the accused and Ms Price (on 7 December 2019 at 4:23am) included the following passage: Price: "So what was he strapped? He was really strapped?" Nehme: "Yeah, but he thing, so my mate went in and then, he, he, he walked to the door and then he ran back to his room, grabbed one, but he stabbed him. Anyways, I'll tell you when I see you, bye."
The relevant portion of the cross-examination of the accused was as follows: "Q. Well, you were certainly talking to Mr Taufahema at the Westside Petroleum as we've seen? A. Yeah, he informed me about most things there, pretty much everything there. Yeah. Q. Did you discuss with [him] what you were going to say about what happened? A. No, never discussed it. Q. Did you discuss the possibility of putting forward some sort of self-defence? A. No way. Wouldn't have thought about that at all."
The Crown's cross-examination of the accused continued by suggesting that Mr Taufahema and the accused discussed concocting an account of what unfolded because they needed to report back to Ms Price: "Q. I suggest to you that you and Mr Taufahema just decided that that would be your story for Ms Price? A. We obviously didn't think that far to think, you know what I mean, like, why would we think that? That's what he told me and that's what I told her. I wouldn't have thought that, you know. I wouldn't have thought that at all. Q. You knew that you would have to report back to Ms Price as to what went down, didn't you? A. Not really no. […] Q. But you knew that there was a real risk that Price would be approached by police, she having given the job to you and she having had contact with Mr Lembryk? A. I didn't even think about that. […]"
In his written submissions, Mr Dalton summarised his argument in relation to Mr Taufahema. He stated: "It is submitted that the fact that [Mr Taufahema] went to trial and did not give evidence in the same way that he did not give an account in his ERISP and that he was convicted of murder at trial is admissible because that evidence could substantially affect the credibility of that person (s108A(1)) and in turn the Crown's assertion put [to] the accused summarised above."
The Crown submitted in reply that: 1. No previous representation has been made in satisfaction of s 108A(1) because no evidence of a previous representation made by Mr Taufahema has been admitted in these proceedings; 2. A jury verdict is not admissible in these proceedings pursuant to s 91 of the Evidence Act (referring to a restricted judgment of this Court); 3. A jury verdict does not constitute credibility evidence about Mr Taufahema; and 4. A jury verdict is not relevant to the issue of whether the accused and Mr Taufahema co-operated to fabricate a false account of self-defence.

Consideration of the evidence in relation to Mr Taufahema

A precondition to the operation of s 108A(1) is the existence of a "previous representation", defined in the dictionary to the Evidence Act as: a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
The dictionary to the Evidence Act defines "representation" to include: (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated.
The cross-examination of the accused (set out above) does not constitute a previous representation of Mr Taufahema that would satisfy the pre-condition in s 108A(1)(a) of the Evidence Act for the admission of credibility evidence about Mr Taufahema. To the extent that a previous representation was made by Mr Taufahema, it must be inferred from the CCTV footage taken at the Westside Petroleum that was shown to the accused in the course of his evidence. However, I am unable to find that the footage constitutes any relevant previous representation. It shows the accused talking to Mr Taufahema, who remains inside the car. Mr Taufahema's face cannot be seen. I cannot discern any representation contended for on behalf of the accused, even when viewed in light of the cross-examination. Accordingly, there is no basis to permit the accused to adduce evidence in the nature of credibility evidence under s 108A of the Evidence Act in relation to any previous representation made by Mr Taufahema.
Further, the jury verdict of guilty in Mr Taufahema's trial is clearly inadmissible in the trial of the accused on the basis of lack of relevance: Evidence Act, s 56(2). The jury verdict in relation to Mr Taufahema could not rationally affect the assessment of the probability of the existence of a fact in issue in these proceedings: Evidence Act, s 55. Whilst the fact in issue is not easy to discern, it would appear that the fact in issue was whether the accused was lying when he denied that he and Mr Taufahema had fabricated a false account of self-defence. This bears no logical connection to the jury verdict in Mr Taufahema's trial. The jury could clearly have arrived at its verdict for any number of reasons.
It is not necessary to decide whether s 91 of the Evidence Act would also render evidence of the verdict inadmissible in the particular circumstances relied upon by the accused in this case.
It was for these reasons that I ruled that the evidence sought to be led in relation to Mr Taufahema was inadmissible.

Submissions

It was contended that the jury verdict of manslaughter in relation to the co-accused Mr Rahim was admissible on the basis of s 108A(1) of the Evidence Act. It was also contended that Mr Rahim's previous representation made to police in relation to him having given certain sunglasses to Mr Taufahema, which were later found at the murder scene, was admissible on the same basis.
The following evidence was adduced in cross-examination of the Officer in Charge, Detective Sergeant Colefax: "Q. And also Mr Rahim was charged; is that correct? A. Yes. Q. And he did conduct a record of interview? A. Yes, he did. Q. No further statement has been provided by him? A. No."
Further cross-examination included the following: "Q. Detective, intelligence has been obtained from Mr Rahim that he gave a pair of sunglasses to Mr Taufahema prior to him going into the Lembryk/Bradley residence in the early hours of 7 December 2019? A. That's right. Q. In the information provided to you, he was able to describe them as having white arms, probably brownish lens and wraparound? A. Yes."
In re-examination, the Crown asked further questions in relation to the identity of the person who possessed the sunglasses at the time of the offence: "Q. In relation to the sunglasses that he [Rahim] said he'd given to Taufahema - A. Yes. Q. - was there any evidence to support that assertion? A. No. Q. There was - A. I should specify, I suppose. Sunglasses were located within the crime scene, so that's obviously a piece of corroboration, but in terms of him having them, whether it was Mr Taufahema or himself or Mr Nehme who took them into the premises, all of those questions were difficult to ascertain. I also found it difficult because he was a close associate of Mr Nehme's as opposed to Mr Taufahema, so that also affected the weight that we could attach to anything that he really said."
The Crown's cross-examination of the accused included the following questions: "Q. Did you wear your sunglasses? A. I didn't have sunglasses. Q. Are they the ones you left at Rahim's later on? A. Yeah. Q. With your bag? A. Must have been, yeah. Q. Because you had worn them to the house, hadn't you? A. I didn't wear them. Q. You wore them inside the house? A. I certainly didn't."
Mr Dalton contended that the questions by the Crown left open the suggestion that when the accused told Mr Rahim in a telephone intercept that he had left his sunglasses at Rahim's that in fact the accused left them in the loungeroom where the stabbing took place.
It was further contended that the credibility of Mr Rahim's account - that he provided Mr Taufahema with sunglasses - was supported by the jury's verdict in Mr Rahim's trial of manslaughter instead of murder, which was said to indicate a challenge to the Officer in Charge's assessment of Mr Rahim's credibility generally. It is submitted that this evidence was admissible because it could substantially affect the credibility of Mr Rahim.
Further, it was submitted that Mr Rahim was otherwise compellable and the suggestion that the accused's sunglasses were at the deceased's residence should not be left to the jury when there has been no challenge to Mr Rahim's account.
The Crown submitted that: 1. By virtue of s 91 of the Evidence Act, the jury's verdict is inadmissible; 2. In the alternative, the evidence would not constitute credibility evidence about Mr Rahim; and 3. In any event, the accused's contentions proceeded on a misapprehension. The cross-examination of the accused by the Crown extracted at paragraph [25] was not to suggest that the sunglasses found at the deceased's residence were the accused's but, rather, that the accused wore his sunglasses into the villa, and then came out and had the sunglasses on his face and placed them in his backpack when he returned to his motorcycle. They were then left near Mr Rahim's house.

Consideration of the evidence in relation to Mr Rahim

As was clarified when the matter was argued orally, the basis for Mr Dalton's contention was grounded on a misapprehension of the effect of the Crown's cross-examination. There was no suggestion made by the Crown that the glasses later found inside the deceased's home had been worn, or belonged to, the accused. Accordingly, the application was ultimately not pressed.

Submissions

Ms Rizk was acquitted of all charges in her trial, including murder. The evidence in her trial included an account she had given to police in a recorded interview that she had taped a large sword like object to the accused's back prior to him leaving for the deceased's residence. Mr Dalton contended in his written submissions that "we understand [this] was accepted by the Crown in her trial". It was contended that the jury verdict in Ms Rizk's trial was admissible on the basis of s 108A(1) of the Evidence Act.
Mr Dalton submitted as follows: "In this trial it has now been raised by the Crown in cross-examination that Ms Rizk may have taped a kitchen knife to the accused's back […] leaving open the suggestion he brought the murder weapon to the premises. It is submitted that the fact that Ms Rizk was acquitted at trial and is compellable is admissible accordingly, because it is submitted this suggestion should not [be] left to the jury when there has been no challenge to Rizk's account in this regard."
The Crown cross-examined the accused on the events leading up to the offence. The accused was asked questions about a bladed object that was taped to him at Ms Rizk's house: "Q. Were you going to Rizk's place to get yourself a knife or the machete to take to a job if something came up? A. Certainly not. […] Q. Now that thing that you had taped to you was what you needed to take into the premises at Condell Park, correct? A. The samurai, I had it taped to me. Q. The question is the thing that you had taped to you was for the purpose of taking it into the premises at Condell Park, correct? A. No. Q. Was it a kitchen knife that you had taped to you? A. It was a samurai."
The Crown also asked the accused in cross-examination what the accused had meant by the word "thing" or "thinged" during telephone calls with Mr Rahim by suggesting that, in the context of those calls, the words meant, respectively, "knife" and "stabbed": "Q. What do you mean by 'thinged' on page 91? A. Well I just didn't want to aggravate Bui at that time - Q. No, no, no, don't worry about Bui, I'm asking you what did you mean by 'thinged'? A. I mean Bui thinged him, Bui stabbed him. Q. Stabbed him. So does that mean with a knife? A. I assume so, yeah. Q. And that's why you used the word 'thing' when you were talking to Rahim before you left for Condell Park being taped to you, correct? A. 'Thing' we use 'thing' for a - as a reference to everything. Thing is an object, person, anything. We use 'thing' for heaps of things, so - […] Q. You were referring to 'thing' to Bilal Rahim earlier, that was also a reference to a knife, a thing that you had taped to you so you were ready? A. Yeah, that's what it says."
Mr Dalton contended that in this cross-examination of the accused, the Crown raised the possibility that Ms Rizk taped a kitchen knife to the accused Nehme's back that was later brought to the deceased's premises. This suggestion was said to directly contradict Ms Rizk's police interview, wherein she recounted taping a samurai sword to the accused's back.
In reply, the Crown submitted that the jury's verdict in the case against Ms Rizk was inadmissible pursuant to s 91 of the Evidence Act. Further, the Crown submitted that even if the verdict was admissible, a jury verdict does not constitute credibility evidence about Ms Rizk as there are many reasons why a jury may deliver a particular verdict. In any event, no suggestion was made in this trial that Ms Rizk had taped anything to the back of the accused.

Consideration of the evidence in relation to Ms Rizk

First, the previous representation of Ms Rizk in her police interview was not adduced in the trial of the accused. Further, no suggestion was made in this trial that Ms Rizk taped a knife to the back of the accused. That is enough to dispose of this submission.
However, it can also be noted that even if it had been adduced, the jury's verdict in Ms Rizk's trial does not constitute credibility evidence for the purposes of s 108A(1) of the Evidence Act. The fact that a person charged in relation to related offences has been acquitted does not, as a matter of logic, constitute credibility evidence in circumstances where a jury might have arrived at its verdict for any number of reasons. It does not follow that the evidence of her acquittal substantially affects the assessment of Ms Rizk's credibility in relation to the account she gave in her police interview. Again, it is unnecessary to decide whether s 91 of the Evidence Act would also render evidence of the verdict inadmissible in the particular circumstances relied upon by the accused.
It was for these reasons that I ruled that the evidence sought to be led in relation to the trial of Ms Rizk was inadmissible.

The decision to discontinue proceedings against Mr Habib

Submissions

Mr Dalton contended that the decision by the Director of Public Prosecutions to discontinue proceedings against Mr Habib was admissible on the basis of s 108A(1) of the Evidence Act. Mr Dalton also raised that Mr Habib was a compellable witness.
Mr Habib was a close associate of the accused. Mr Habib's house was where Mr Taufahema was staying when Mr Taufahema was collected prior to the killing of the deceased, and where Mr Taufahema's shoes were found, with the deceased's blood on them a short time after the deceased's death. Evidence that Mr Habib had been charged "at one point" was initially adduced by way of cross-examination of the Officer in Charge, Detective Sergeant Colefax. In re-examination, he was asked further about this, as follows: "Q. You were asked some questions about Mr Habib having been charged. What was he charged with? A. I don't recall specifically whether he was an accessory or charged with concealing this offence, but one of the two. Q. And was it related to a police allegation that he was withholding evidence that he had? A. That's right. There are a number of calls in which he offered counsel to the accused. It was on that basis."
The Crown's later cross-examination of the accused sought to adduce evidence as to the relationship between him and Mr Habib. The accused was asked questions as to whether he sought advice from Mr Habib at a time after the death of the deceased: "Q. You wanted Mr Habib's advice on what you should do with this situation? A. I guess, yeah. Q. Because he was a man of some senior years compared to yourself. Correct? A. I guess, yeah. Q. And he was a good man for you to get some suggestions from. Correct? A. I guess. I don't know."
Mr Dalton contended that the Director of Public Prosecution's withdrawal of the previous charges against Mr Habib was admissible in these proceedings because it had been left to the jury that Mr Habib provided counsel to the accused after the offence and that he had been charged. It was also relevant that he was a compellable witness.
The Crown contended there were three bases upon which the evidence that the Crown discontinued proceedings against Mr Habib was inadmissible. Relevantly, they were that: 1. There is no evidence of a previous representation made by Mr Habib admitted in the current proceedings that would satisfy the precondition in s 108A(1)(a) of the Evidence Act; 2. The reasons for which the Director of Public Prosecutions decides to discontinue proceedings against an accused are not known and may be for reasons unrelated to the evidence in support of the charge; and 3. A suggestion that a different charge, with different elements, was withdrawn, could have no bearing on whether there was a reasonable prospect of conviction or whether such a charge was in the public interest.

Consideration of the evidence in relation to Mr Habib

The definition of a previous representation is extracted at [15] of this judgment. Even though the previous representations made by Mr Habib could only arise from the audio recording obtained by way of telephone intercept, it is not clear what "previous representation" is being relied upon by the accused in relation to this argument. It may be that the implied previous representation is the "counsel" offered by Mr Habib to the accused in a global sense.
In any event, the fact that at one point there existed charges against Mr Habib which were subsequently withdrawn does not have any relevance to the evidence in which the accused is said to be seeking counsel from Mr Habib. The basis for the decision of the Director of Public Prosecutions to discontinue proceedings against Mr Habib is unknown. The decision may have had no relationship to the strength of the evidence against him. As such, evidence that the Crown discontinued proceedings against Mr Habib could not rationally affect the assessment of the probability of the existence of a fact in issue in these proceedings (s 55 of the Evidence Act). Accordingly, such evidence is not relevant.
Further, I also note that it is a matter for the Crown, in accordance with its prosecutorial duties, who it calls as a witness: Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23; Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42; Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1.
It was for these reasons that I decided that the decision by the Director of Prosecutions to discontinue criminal proceedings against Mr Habib was inadmissible.

Orders

The Court made the following orders: 1. The application by the accused to adduce the following evidence is refused on the basis that the evidence is not admissible: 1. That Viliami Taufahema did not give evidence at his trial and did not raise self-defence. 2. The jury verdicts in the prosecutions of Viliami Taufahema and Sherene Rizk. 3. The decision of the Director of Public Prosecutions to discontinue proceedings against Mr Habib.

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: 13 May 2024

Evidence Act 1995(NSW)ss 55, 56, 91, 108A

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