R v Nehme, Price, Rahim, Taufahema and Rizk

Supreme Court of NSW|2023-03-10|Before: Button J

Introduction

This judgment explains several pre-trial rulings that I made about the admissibility of certain digital evidence on 27 February 2023 (at trial transcript 249 line 20; TT 249.20). As before, the judgment assumes familiarity with my previous judgments in the matter: see 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. The only fact that I shall repeat from those previous judgments is that the Crown case was that the murder allegedly occurred in the early hours of the morning of 7 December 2019.
Because those evidential rulings of mine were contingent (in the sense of being able to be revisited later in the trial), and because they were never actually put into effect, in the sense of evidence being placed or not placed before the jury, and for another reason that I shall explain at the end of this judgment, yet again I shall be brief.
The contents of the digital product were set out in written form in a table, behind tab 9 of voir dire exhibit B. The material was the subject of detailed written and oral submissions, the latter commencing at TT 217.25.
As needs be, I listened to the digital product itself, that having been tendered on the voir dire as well.

Conclusion

That provides a sketch of my thinking when I delivered the rulings about the digital product on 27 February 2023. As I have explained, those rulings were by their nature contingent, and one of them was explicitly expressed in that way.
It also bears repeating, I think, that it was a little over a week later that the High Court clarified that some of my thinking about the elements that needed to be proven by the Crown, and the issues in the trial arising as a result, may have been misplaced. And of course, those understandings of mine underpinned my assessments of relevance, and probative value, and prejudicial effect.

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