R v Nehme, Price, Rahim, Taufahema and Rizk

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

Introduction

This judgment explains why, at a pre-trial stage of a murder trial, I indicated on 24 February 2023 that I did not propose to exclude from evidence a recorded interview that had taken place between one of the accused, Mr Nehme, and investigating police in the early hours of the morning of 10 December 2019 (at transcript page 184 line 19; TT 184.19).
This judgment assumes familiarity with all of my proceeding 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; and R v Nehme, Price, Rahim, Taufahema and Rizk (No 4) [2023] NSWSC 932.
As I have explained in earlier judgments, events overtook the ruling by way of the jury being discharged before either the recording or its transcript was placed before it, and for that reason my ruling remains "unfulfilled".
The objection was made pursuant to s 138 of the Evidence Act 1995 (NSW). It had two bases. The first was that the police had unlawfully failed to defer the interview in order to permit a lawyer to be present, contrary to s 123 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). The second was that the police had improperly if not unlawfully impugned the right to silence of Mr Nehme by commencing and continuing to question him, after he had made it clear that he did not wish to answer any of their questions.

Background

By way of undisputed background, the deceased had been fatally stabbed in the early hours of 7 December 2019. Mr Nehme was arrested at 11:10 PM on 9 December 2019. On arrest, he was informed of his right to silence, but chose to speak to the police in the context of the execution of a search warrant at that location. He arrived at a police station at 11:57 PM, and came into the care of a custody manager. He was obviously injured to the face, and in pain, as the custody management records state. After that, police made a number of efforts to contact a lawyer at the request of Mr Nehme. Unsurprisingly at that hour, none was available. The recorded interview commenced at 3:40 AM, and concluded very close to 6 AM. Mr Nehme was subsequently charged with murder.
I was provided with a transcript of the recorded interview, and watched the entirety of the digital product in Chambers. The two investigating detectives were cross-examined on the voir dire, and I was provided with their statements. I also had the custody management records pertaining to Mr Nehme, along with a statutory form that set out his rights whilst arrested and with which he had been provided. Finally, as a matter of background, I had a detailed Crown Case Statement that permitted me on the voir dire to have a good understanding of the whole of the Crown case.

Unlawfulness - commencement of interview?

The submission about the first basis of the objection proceeded as follows. Section 123 of LEPRA speaks of the requirement for a custody manager to inform an arrested person that they may "communicate, or attempt to communicate" with a lawyer, including a right to ask the lawyer to attend and advise, and to be present during any investigative procedure: s 123(1)(b)(ii).
It was also said that, pursuant to s 123(3), it was incumbent upon the custody manager to defer "for a reasonable period" any investigative procedure in order to allow an arrested person "to make, or attempt to make" a communication with a lawyer (amongst others).
It was further said that, if a lawyer can be contacted, reasonable time must be allowed to permit the lawyer to arrive, and to consult with the arrested person: s 123(3)(b).
And it was also explained that s 123(7) had only an indirect role to play here, in that the "time limit" of two hours upon deferral of an investigative procedure that the provision imposes, between contact with and arrival of a lawyer, only applies if a lawyer has, in fact, been contacted.
Here, in contrast, the interview commenced with no lawyer having been able to be contacted. That meant that the two-hour time limit spoken of immediately above did not apply, for the simple reason that a lawyer had not been contacted, and was therefore not on the way. The investigating police were simply wrong in their evidence to the contrary.
It was said that Parliament had chosen not to impose such a time limit regarding efforts to contact the lawyer. And it was also said that that open-ended legislative choice stands in sharp contrast to the reasonably short period allowed between successful contact and arrival.
Finally, it was said that the police had not allowed a reasonable time for contact with a lawyer. As a matter of common knowledge, it would have been most unlikely for a lawyer to have been available in the early hours of a Tuesday morning. What should have occurred, it was said, in order to render the period of trying to make contact with a lawyer of reasonable length, would have been to wait until 8 AM or so, readily make contact with a lawyer then, and commence the interview upon their arrival.
I did not accept that submission, for the following reasons.
First, I accepted that s 123(7) did not directly apply here. To repeat: my reading of that subsection is that it imposes a time limit between successful contact and arrival (just as s 123(8) imposes a similar but not identical time limit). But here there was no successful contact with a lawyer.
Secondly, I also accepted that the Form 31 created pursuant to LEPRA and provided to Mr Nehme may be (undoubtedly unintentionally) drafted in a way that is incomplete or inaccurate, in that it says nothing of a reasonable time being allowed for efforts to contact a lawyer or other persons. If anything, it tends to imply that such a process can go on indefinitely, which I do not accept to be the case.
Thirdly, I accepted that the investigating detectives were mistaken in their belief as to what the law was about how long it was that they should allow for Mr Nehme to try to contact a lawyer. But I did not see anything particularly sinister in that: there was no suggestion that either of them was legally trained; the section under consideration is, with respect, a little Delphic; and the Form is, as I have said, not entirely clear either, and arguably incomplete. And to be clear, I did not come to the view that they were lying on oath in order to manufacture a mistaken belief on their part.
But fourthly, and in any event, I came to the view that the police had allowed a reasonable time between the arrest of Mr Nehme and the commencement of the interview. I did not accept the submission of senior counsel about how the commission of a murder of the utmost gravity could have been investigated, and the delay that should have been built into that crucial phase. I considered that it would have been quite unrealistic to expect the police to "sit on their hands" between the arrival of Mr Nehme at the police station a few minutes before midnight and the commencement of an interview with him as late as perhaps 11 AM the following day (on the assumption that a lawyer were able to be contacted only a few minutes after 9 AM, when business hours commence, and only arrived at the police station precisely two hours later). I do not believe that the regime in LEPRA interferes with the ability of the police to investigate serious offences in a reasonably timely and efficacious way to that extent.
As I have said, evidence was placed before me on the voir dire (exhibit B, Tab 5, statement of Detective Lal of 22 February 2022) that numerous efforts were made to contact lawyers for Mr Nehme, along with a relative who, I presume, if able to be contacted, may have been able to assist in finding a lawyer. That evidence was not impugned on the voir dire. And to repeat the chronology, the recorded interview did not commence until more than three and a half hours after the arrival of Mr Nehme at the police station, and almost four and a half hours after he was arrested. All of that supported my evaluation that the time taken to attempt to secure a lawyer was, in the context of the whole matter, reasonable. I did not consider that a further delay was necessitated by the legislation.
In short: as the tribunal of fact and of evaluative judgments on the voir dire, I felt that the time taken (including the efforts made within that time) to locate a lawyer on behalf of Mr Nehme was reasonable. To express that more correctly, in accordance with onus: I did not consider that it had been established that the time spent in those efforts and thereby delaying the recorded interview was unreasonable. For that reason, I did not believe that breach of the statute had been established.

Unlawfulness or at least impropriety - right to silence impugned?

The submission in support of the second basis for exclusion was as follows. The evidence placed before me by the Crown on the voir dire showed that, before the interview commenced, and in the portion of the interview between questions and answers 1 and 56 (from now on, QA 1-56), Mr Nehme made it clear that he did not wish to take part in an interview. It was at the least improper for the police to proceed to engage in an interview with him, once that had been made clear. They adopted a further tactic of commencing with inconsequential or background questions in order to "get him to talk", and thereafter moved to more important material. And they acted more generally as if there was some sort of obligation upon them to engage in that "process", whereby they gave Mr Nehme the impression that it was mandatory for him to at least listen to their questions; in fact, it was not.
The police, it was said, should simply have accepted the decision of Mr Nehme, refrained from asking him any questions, and proceeded to charge him, if they felt that they had sufficient evidence to do so.
As for this basis for exclusion, I agreed with much of what senior counsel had said, as follows.
Mr Nehme on many occasions certainly indicated that he did not wish to speak to police.
The police were determined to put the allegation to him, despite there being no requirement on them to do so, and no requirement upon Mr Nehme to listen to it. Having said that, if Mr Nehme had flatly refused to leave the dock and go to the interview room, I do not believe that the police would physically have dragged him from the former to the latter.
The police in putting the allegation to him hoped that he would respond to it.
The two experienced detectives were aware that time spent seeking to contact a lawyer constituted a statutory "timeout" that meant that it did not count against them as part of investigation period.
The police adopted a deliberate tactic of commencing with broader and less important topics in their questions, and only narrowed them down as the interview progressed.
At the time, it was the early hours of the morning. Mr Nehme was injured, and he was in pain.
All of those matters supported the proposition of impropriety. To be weighed against those factors were the following.
Each matter will turn on its own facts. Reference to other judgments in which admissions have been admitted or rejected is helpful, but by no means determinative. It is a matter of my assessment of all the circumstances, and coming to an evaluative judgment about them as a whole, much as a tribunal of fact must do when assessing a circumstantial case.
It is well-established that the police are not mandated to ask no further questions whatsoever as soon as a suspected person indicates that they do not wish to speak. Again, whether impropriety is established is a question of degree, on all the facts of the case.
The mind of Mr Nehme, like all human beings, had a number of feelings and motivations operating within it, before and during the interview. One of them was a reluctance to speak to police, but there were others, identified below.
Mr Nehme said some things before the interview commenced that could be interpreted as a readiness to engage (at least in the broad sense) in a recorded interview: "Alright let's go. I want to help you but I don't want to answer any questions" (at [24] of the statement of Detective Lal).
Mr Nehme struck me as an intelligent person who was soundly intellectually engaged in the process of questioning, despite his obvious injury. And despite the early hour, and the fact that Mr Nehme yawned on a number of occasions, I felt that he was well-focused, mentally and emotionally, upon the interaction with the detectives as it occurred. There were occasions throughout the interview when he was smiling or laughing, despite the circumstances: see, for example, QA 170, 273 ff. Rather than appearing subdued, overborne or oppressed, he was animated, even lively.
I find that part of his motivation for listening to the questions of the police, and answering the vast majority of them, was an effort to understand what evidence the police possessed against him.
Another motivation was to provide an exculpatory version of events (conceded by senior counsel to be substantially false) along with criticisms of the value of the evidence in the hands of the police, in an effort to avoid being charged, so that he would be released.
Mr Nehme chose to answer very many questions after QA 56.
Having said that, Mr Nehme exercised his right to silence on a number of occasions during that process, thereby demonstrating that he was not in a position where he felt emotionally unable to do so: see, for example QA 228, 273, 282 and 283, 550, and 965.
Mr Nehme was emotionally quite capable of asking questions of the police, including about the state of their evidence: see, for example QA 361, 667, 671, 725 ff, 798, and 944.
He could be quite forceful with the investigating detectives, and even argue with them, including in claiming serious misconduct on their part: see, for example, the transcript and video recording of QA 479, 899 ff, 1055 ff,1065 ff, and 1096 ff.
He could proffer exculpatory statements and versions of events with enthusiasm: see, for example, QA 805, 891, and 975.
Notably, there were occasions towards the end of the recorded interview on which it even seemed as if it was Mr Nehme who was cross-examining the investigating detectives.
In short, there was material to suggest that, before the interview and at its early stages, a significant part of the state of mind of Mr Nehme was that he did not wish to engage in a recorded interview with police, especially in the absence of a lawyer. And as I have said, the police wished him to do so, and took steps to make that more likely to happen. Even so, my ultimate evaluation was that, when he did commence to speak to the detectives after QA 56, that was a choice exercised by Mr Nehme, motivated by a number of considerations that he regarded as in his interests. My ultimate evaluation was that he chose to engage in the recorded interview as he did. And although the questioning by the police was persistent, synthesising all of the circumstances of this case, I did not regard it as impermissibly so.

Contingent analysis - discretionary inclusion?

Finally, in rejecting the application I turned my mind to s 138 of the Evidence Act, on the assumption that the above analysis was wrong, and that there had been impropriety or illegality. On the assumption that the police should not have interviewed Mr Nehme when they did, and that they had impugned his right to silence, I reflected upon whether, even so, I would exercise my discretion to permit the evidence to go to the jury.
I answered that question in the affirmative, reflecting on the specific statutory factors in s 138(3) of the Evidence Act as follows.
Contrary to the submission of senior counsel, I felt that the probative value of what Mr Nehme had to say in an extended, detailed recorded interview, including but not limited to his explanations for some very pertinent digital material, was extremely high. Although I accepted that his formal admissions that he had been at the scene of the homicide and had committed at least one offence less serious than murder played a role in reducing that probative value, especially regarding him having allegedly told many significant lies, it by no means rendered it minimal. And I took that view because, in accordance with the decision of the High Court in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [72]-[76], an admission to less serious offending by no means necessarily renders the probative value of lies nugatory.
In similar vein, I felt that the evidence was very important. It was the only source of a version from Mr Nehme available to the Crown case.
The fact that the evidence was being tendered in a murder trial argued powerfully for its inclusion; senior counsel did not submit otherwise.
As for the gravity of the impropriety or illegality, if I had found that there had not been reasonable time afforded to obtain a lawyer, I would have regarded that, in all the circumstances, as rather grave. I would not have gone further, because minds may legitimately differ about statutory questions of reasonableness and other evaluative judgments.
On the other hand, if I had found that the police had forced an arrested person to speak when that person did not wish to, I would have regarded that as very grave.
Turning to the question of deliberateness or recklessness, if I had been satisfied that a reasonable time had not been afforded to contact the lawyer, I would have regarded that contravention as based on recklessness, founded on ignorance or misunderstanding, not upon deliberate contravention of the legislation, especially taking into account the evaluative judgment for which the concept of a reasonable time calls.
As for the impugning of the right to silence, if I had found that that occurred, I would have regarded it as having been deliberate by its nature.
As for the role of the International Covenant on Civil and Political Rights, as the transcript shows, I did not believe that the first contravention, focused as it was upon an aspect of the detailed regime in New South Wales for the treatment of arrested persons, would have appeared in that document.
I did, however, believe that the right to silence would be an important part of the Covenant.
With regard to both putative failings, I took the view that it was most unlikely that any other proceeding would be taken in regard to either of them.
Finally with regard to mandatory matters, I considered that, if the first matter had been established, it may have been difficult to obtain the version of events of Mr Nehme if there had been a delay of many hours as proposed by senior counsel. As for the latter matter, if it had been established that the police had impugned the right to silence of Mr Nehme, I would have accepted that it would have been difficult for them to have obtained his version otherwise.
I also bore in mind the fact that those eight factors mandated by statute are inclusive not exclusive, and I am entitled to take into account other factors that I regard as relevant, and to reflect on the matter as a whole.
In that regard, I considered that, if both matters had been established, and the police had unwittingly unreasonably interviewed Mr Nehme too early, and furthermore had inveigled him into speaking when he did not wish to do so, even so, the profound gravity of the allegation, and the profound significance of what he Mr Nehme had to say about it, would have led me to be satisfied that the evidence should be included.

Conclusion

It was for those reasons that I provided the ruling refusing to exclude the evidence of the recorded interview on 24 February 2023.

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: 26 April 2024

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