R v Nehme; R v Price; R v Rahim; R v Rizk; R v Taufahema

Events leading up to the withdrawal of the accused Rahim's counsel and the separate trial application made by the applicant

1. It is appropriate to provide further detail of the events leading to the separate trial application. These facts emerge from the material tendered in support of the Notice of Motion, being, 1. an affidavit of Jermaine Corban of 31 October 2023; 2. four statements of Detective Sergeant Matthew Colefax - one dated 26 October 2023, two dated 27 October 2023, and one dated 30 October 2023; 3. a statement of Detective Senior Constable Kieran Deas dated 26 October 2023; and 4. a USB provided by Detective Sergeant Colefax containing CCTV footage from the John Moroney Correctional Facility as well as an interview with the accused Rahim. A transcript of that interview was also tendered.
2. On Tuesday 24 October 2023, after a day in court spent dealing with pre-trial applications before the trial was due to start the following day, those accused who were in custody (that is, all but the accused Price) were returned to their respective correctional facilities. Relevantly, the applicant was being held at the Metropolitan Remand & Reception Centre ("MRRC") at Silverwater, and the accused Rahim at the John Moroney Correctional Centre at Windsor. The applicant and the accused Rahim were transported in separate pods in the same prison van, and the Nehme legal papers (contained within a rigid clear plastic bag) were transported in a different part of that van. Unfortunately, instead of the Nehme legal papers being offloaded at the same time as their owner at Silverwater, they were mistakenly kept on the prison van, and sent out to the Windsor facility.
3. The next unfortunate event is that it appears that on arrival at Windsor on Tuesday night, the Nehme legal papers were offloaded and mistakenly offered to the accused Rahim (even though, as I understand it, they were labelled with the name and photograph of the applicant). At this point, the accused Rahim properly informed the Corrective Services officer that they were not his papers, but rather belonged to his co-accused. He went to his cell that evening. The Nehme legal papers remained on the counter overnight.
4. The CCTV footage from Windsor shows that early the following morning, Wednesday 25 October 2023, instead of having been put in a safe place so they could be securely placed on the prisoner transport and returned to their rightful owner, the Nehme legal papers remained on the top of the reception counter in the Corrective Services office area.
5. Unfortunately, when the accused Rahim entered that area at around 5:13am, he saw the Nehme legal papers on top of the counter, and instead of continuing to resist the temptation to look at them as he had properly done the previous evening, he took them into the holding cell with him.
6. The CCTV footage shows between 5:13am and 5:28am the accused Rahim is reading a notebook taken from the Nehme legal papers. At 5:28am, the accused Rahim is seen to put the notebook back into the bag. He then removed some paperwork and discarded it in a bin just outside the cell. He then was seen to talk to another inmate within the holding cell (not one of his co-accused).
7. Between 5:35am and 5:55am, the accused Rahim is seen to read the notebook again, and then discard something into the bin. At 5:55am, the accused Rahim is seen to remove numerous pages from the notebook and fold them before placing them in the front of his underwear. During this time, the accused Rahim handed the other inmate some paperwork. The accused Rahim then left the cell carrying the bag which he placed back on the reception counter.
8. At 5:59am, the accused Rahim walked back towards the holding cell and the other inmate handed him the paperwork previously provided to him. The accused Rahim then placed that paperwork into a different bag (not the same one he had in the cell earlier) on the reception counter. It would appear that this bag belonged to the other inmate, although it is not entirely clear from the available evidence.
9. At 6:08am, the accused Rahim was taken into the change room, and whilst changing into his suit for court he removed the paperwork from his underwear and placed it into the front pocket of his suit jacket. At 6:14am, the accused Rahim boarded the prison transport truck. At about this time, a Corrective Services officer was seen to seal the bag containing the Nehme legal papers and place it under the counter of the reception desk. It is possible, but not clear, that a new label was placed on the bag at this point.
10. At 7:16pm that day (Wednesday), after returning to the John Moroney Correctional Centre at Windsor, the accused Rahim was handed the bag containing the Nehme legal papers from under the reception counter by a Corrective Services officer. The accused Rahim then returned to his cell with the Nehme legal papers.
11. On the morning of Wednesday 25 October 2023, the applicant reported to his lawyers that he had been missing his legal papers since arriving back at MRRC Silverwater on Tuesday afternoon. He indicated that the papers comprised two marked copies of the master chronology upon which he had made notes, and three notebooks which contained all of his handwritten notes and instructions he had made since being held on remand from December 2019. The applicant further informed his lawyers that the accused Rahim told him that Corrective Services had given him the applicant's confidential legal bag by mistake and that he (the accused Rahim) had read all the applicant's confidential instructions for the trial which were contained in the papers. The applicant also told his lawyers that the accused Rahim had discussed some of the details of his confidential instructions with him.
12. The applicant's lawyer expressed concern that the other co-accused would become aware of the confidential material. He referred to information indicating that mobile phones are used illegally between inmates in custody. He also referred to the apparent discussion of material the accused Rahim had with the other inmate of the holding cell at John Moroney prison on Wednesday 25 October 2023, which is seen on the CCTV footage.
13. The applicant's lawyer indicated that the applicant instructed him that the notebook with the light blue cover was the material the accused Rahim spent the most time reading (as seen on the CCTV footage) and that had been his major notebook for recording his instructions since 2020. It was this notebook that the accused Rahim is seen ripping apart, some of which he also put down his pants, and thereafter gave the other inmate in the holding cell the other part of the book, as revealed by the CCTV footage. It was part of that notebook that the other inmate gave back to the accused Rahim, who then (apparently) put it into the other inmate's personal bag.
14. The applicant's lawyer was also told that other inmates in the applicant's pod had said they were waiting to find out what his confidential notes said.
15. On Thursday 26 October 2023, the accused Rahim's cell at the Darlinghurst Court Complex was searched and what remained of the Nehme legal papers were located and then seized.
16. Also on that day, the accused Rahim was interviewed by the police, which was recorded on body-worn video. During that interview he told police that he had obtained the applicant's brief and had gone through it. When asked about the location of notes that were said to be in his pocket, the accused Rahim said that he had ripped them up and flushed them down the toilet. When asked what he hoped to get out of reading the brief he said that he knew that the applicant was going to give evidence and that "I just cared what he was going to say about me". When asked if he knew if he was going to say anything about him, the accused Rahim said "yes he was".
17. He indicated that he had ripped the material up and flushed it down the toilet the previous day, after his barrister had spoken to the Court.
18. The accused Rahim also told police that the previous day he had ripped up the coversheet with the applicant's name and photograph on the Nehme legal papers so that the Corrective Services officers did not realise that the material he had was not his.
19. The accused Rahim was asked if he had spoken to anyone else about what was in the Nehme legal papers and he stated, "all three of us had a bit of a discussion about it", meaning the accused Rahim, the applicant and the accused Rizk. He further stated, "I saw what I saw I didn't like one of the things that was in there I'm not gonna get into that but I didn't like what was in there so what I did was I said like you know so that". The accused Rahim further stated, "that's just his [the applicant's] version of events". He stated that the accused Rizk said she was upset that the case was adjourned (because the accused Rahim's counsel had withdrawn, and the trial had to be adjourned in part in order to allow new counsel to come into the trial).
20. The accused Rahim further stated that he said to the applicant "when the fuck did this happen? He goes that did happen I go no it didn't fucken happen no it fucken as you can understand we were on so much drugs back then so".
21. The other inmate who shared the holding cell with the accused Rahim on Wednesday morning was also approached and declined to be interviewed by police, but through his lawyer provided an account. I place little weight on this account for two reasons: first, because it is a hearsay account and secondly, because so far as can be seen from the CCTV footage and other evidence, it does not entirely accord with it. He indicated that he recalls that the accused Rahim offered him a blank notepad to write notes during his trial and he at first accepted this notepad. He then reconsidered keeping the notepad as he does not write any notes during his trial anyway, so he returned it to the accused Rahim. He further indicated that he was not asked to do anything or contact anyone for the accused Rahim. He further maintained that he did not receive or keep any papers from the accused Rahim apart from receiving the blank notebook referred to above. This inmate did not say anything about the papers placed into the bag apparently containing his effects, nor about conversations which were held during their shared time in the cell.
22. The applicant's lawyer stated that once the Nehme legal papers were returned to the applicant the light blue notebook containing the bulk of his confidential instructions was no longer with the material. His further confidential notes on pages in the other purple and yellow notebooks also appeared to have been removed. Accordingly, the applicant had lost his confidential notes and instructions since 2020.
23. The applicant's solicitor also indicated that on Wednesday 25 October 2023, the accused Rahim's Senior Counsel, Mr Nield SC, notified Mr Dalton SC (the applicant's Senior Counsel) that he had been told by his client the details of some confidential information in the nature of some of the applicant's instructions to his lawyers. Unless the applicant consented to him having that material Mr Neild SC would have to withdraw pursuant to r 101(a) of the Barrister's Rules. Instructions were obtained from the applicant, and no such consent was forthcoming.
24. Rule 101(a) is in the following terms: A barrister must refuse to accept or retain a brief or instructions to appear before a court if: (a) the barrister has information which is confidential to any other person in the case other than the prospective client, and: (i) the information may, as a real possibility, be material to the prospective client's case, and (ii) the person entitled to the confidentiality has not consented to the barrister using the information as the barrister thinks fit in the case,

Application for a separate trial by the applicant

1. On Tuesday 31 October 2023, the applicant filed a Notice of Motion seeking an order that he be tried separately from the other four accused (Ms Price, Mr Rahim, Ms Rizk, and Mr Taufahema).
2. A previous application for a separate trial had been made by the applicant before Bellew J, but on an entirely different basis. That application was refused: R v Nehme & Ors (No 1) [2022] NSWSC 138. The New South Wales Court of Criminal Appeal refused leave to appeal that decision: Nehme v R [2022] NSWCCA 49. It can be noted that this trial was originally listed to start before Bellew J (but was affected by the Covid-19 pandemic and did not proceed), [1] and then Button J (before whom the trial proceeded for a time, but was aborted mid-trial when the High Court decision of Mitchell v The King [2023] HCA 5 was delivered). [2]
3. The basis of this separate trial application was the stealing (and partial destruction) of the applicant's legal papers by the accused Rahim. It was submitted on behalf of the applicant that the following consequences flowed from these acts: 1. The applicant's legal professional privilege was breached such that he could not receive a fair trial because the co-accused persons could structure their attacks upon him based upon their access to his confidential instructions. 2. There was no way of knowing whether each accused had in fact been informed of the terms of the applicant's confidential instructions. 3. The co-accused persons could falsely claim that the applicant had given prior contradictory accounts to themselves and others without the applicant being able to provide prior consistent statements or even refer to the detail of his stolen and missing instructions. 4. The applicant was already in a 'cut-throat' case with the accused Taufahema, and there was no way of knowing whether the applicant's confidential instructions had been passed to the accused Taufahema. 5. If the accused were to tell their legal representatives at some point in the trial that they had received confidential information, their legal representatives would likely have to withdraw. This would cause the applicant gross unfairness as an earlier trial was aborted, through no fault of his own, earlier this year. 6. Although different to the situation in Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53 ("Strickland"), as that case involved dissemination of information to the prosecution not to a co-accused, certain analogous principles were argued to apply: see [80], [184]-[190]. As I understand the argument put, the dissemination of the confidential instructions could provide tactical advantages to the co-accused. Referring to Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 ("Lee"), Keane J in Strickland at [186] emphasised that it was not necessary to show "practical unfairness" because what had occurred by the dissemination of material to the prosecution in that case had "altered the position of the prosecution vis-à-vis the accused". Stretching this principle to apply to the current situation, the applicant submitted that what occurred in this case had similarly fundamentally altered the trial, albeit the advantage went to a co-accused rather than the prosecution. In any event, these authorities emphasised the fundamental right to a fair trial - which could no longer occur in the present situation, without granting the applicant a separate trial. 7. Unfairness also arises because the potential of the dissemination of his confidential instructions to one of the co-accused running a 'cut-throat' defence, which may result in that person gaining an unlawful insight into the applicant's trial strategy including the defence he is to give at trial. Whether or not such unlawful insight had been or would be gained is simply not known at this point, and may never be ascertained. 8. There is no way to stop material gleaned from the Nehme legal papers being disseminated. All sorts of methods can be utilised to disseminate information from one jail to another. There was a real prospect of the co-accused being informed of the information gained. 9. The position of the applicant may be forensically disadvantaged by his co-accused knowing what he may have written in his notes which did not end up being his final instructions. There may be aspects of the applicant's recorded notes that he chooses not to adduce in evidence. The unlawful dissemination of his confidential material means that he loses the choice of what to put and what not to put. The applicant pointed to the passage in Lee at [41] (albeit stated in a different context), "[a]n accused person may be prejudiced in his or her defence because he or she can no longer determine the course to take at trial according only to the strength of the prosecution case".
4. The Crown opposed the separate trial application. Although it acknowledged that the opportunity for one co-accused's brief to be accessed and read by another accused in a criminal prosecution was highly undesirable, "the reality is that the accused Rahim (and his 3 co-accused) were potentially going to find out at some stage (if the applicant gave evidence) his instructions". The Crown further submitted that if the applicant did not give evidence the effect of the revelation of the content, albeit confidential, was inconsequential.
5. The Crown pointed to the nature of the bulk of the evidence to be adduced by the prosecution - mainly unchallengeable evidence including telephone intercept recordings, CCTV footage, the playing of triple-0 calls as well as other evidence of an uncontroversial character. Accordingly, the Crown submitted, the most prejudice the applicant would suffer is that the co-accused would be appraised of the applicant's likely version of events, should he give evidence, before he came to give his evidence.
6. The Crown submitted, "Whilst this may be prejudicial to him if there were witnesses in advance of the applicant who might be cross-examined differently in light of the advance knowledge, that is not the nature of the Crown case to be presented in this trial, where the majority of the evidence to be adduced in the Crown case has been agreed by all parties. Consequently, in the last trial before Button J, many of the witnesses were not cross-examined at any length, if at all." (Footnote excluded).
7. The Crown briefly summarised the evidence which was led in the previous trial up until the discharge of the jury and submitted that "there is no real scope for the co-accused to take advantage of forewarning of the accused's likely evidence". The Crown further asserted that having access to the stolen legal papers was analogous to being aware of a version of events a co-accused provided to police in a recorded interview.
8. The Crown submitted that advance knowledge of the applicant's evidence "could not be said to [be] material to any co-accused's case unless and until he gives evidence". In any event, it was further noted by the Crown that the applicant would be giving evidence first, before any of the co-accused, so in practice there would be no real risk of positive injustice.
9. As to counsel of the co-accused becoming privy to any of the material the Crown submitted that it was "speculative" and "measures can be put in place to prevent that occurring".
10. The Crown also submitted that "no material remaining […] is at large", apparently accepting the evidence from the other inmate in the holding cell that all he was given was blank paper. The Crown did not address the material that was apparently placed in the other inmate's personal bag by the accused Rahim, or the fact that the accused Rahim read the Nehme legal material and thereby would be in a position to disseminate its content orally.

Consideration

1. As has recently been confirmed by the High Court in McNamara v The King [2023] HCA 36 ("McNamara") (a decision handed down after I had made my determination), it is accepted that as a general proposition, for numerous reasons of principle and policy, persons charged with committing an offence jointly ought to be tried together. Underpinning that general proposition are not only factors such as avoidance of delay in the administration of justice, the increased public expense, the increased trauma and inconvenience associated with the conduct of separate trials, but also the acceptance that the consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when one accused attempts to cast blame on another. It is further accepted that the obvious dangers for an accused in a joint trial, by reason of the admission of evidence which would not be admitted at the trial of one accused, can be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused: Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 at 88-89. An exception to the general rule arises where there is a real risk of positive injustice to an accused: Caleo v R [2021] NSWCCA 179 at [137]; (2021) 290 A Crim R 352; R v Houda [2022] NSWCCA 179.
2. Indeed, as observed by Gageler CJ, Gleeson and Jagot JJ in McNamara at [41]-[42]: "Mindful that such reasons of principle and policy might not prevail against countervailing considerations in every case, and could not in any case prevail against the fundamental right of an accused to a fair trial, the common law recognised the power of a court presented with a joint indictment to sever the indictment by ordering separate trials of any one or more charges against any one or more accused where the court was satisfied that the overall interests of justice affirmatively required that course to be taken. The power was exercisable before trial and remained exercisable at any stage during the trial. The same is true of the statutory power to order a separate trial now reposed in a court by s 21(2)(b) of the Criminal Procedure Act. […] Having regard to the strength of the reasons of principle and policy which ordinarily weigh in favour of a joint trial, however, even substantial prejudice to a co-accused of a kind not really amenable to nullification by judicial direction will not result in the ordering of a separate trial 'as a matter of course'. To justify the ordering of a separate trial, the particular prejudice to a co-accused must rather be shown to be such as would occasion 'positive injustice'. In a joint trial, as in any other trial, '[a] fair trial according to law does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused'." (Footnotes omitted.)
3. The full extent of what is missing from the Nehme legal papers is unknown and incapable of being ascertained. Similarly, the extent of dissemination of his confidential material, including his instructions, is also unknown and incapable of being ascertained. Contrary to the Crown's submission, there is no effective way of containing the dissemination in these circumstances.
4. What is clear is that the accused Rahim read some confidential material contained within the Nehme legal papers and disseminated at least some of it to his lawyers, who then felt they had to withdraw. It can be concluded by their actions that the information passed to the lawyers (including Senior Counsel) was of the character which triggered r 101(a) of the Barrister's Rules and thus was of a nature which was confidential to the applicant, and also may, as a real possibility, be material to the accused Rahim's case.
5. If, as is possible, confidential material (either written or oral) has been or will be (at any point) communicated to other co-accused who are in a joint trial with the applicant, and they in turn communicate it to their lawyers, there is an obvious risk that those lawyers would also have to withdraw, thus aborting any trial which was underway.
6. Further, given the paucity of knowledge about the content of the Nehme legal papers and the extent of the dissemination of the information contained in them, if there were to be a joint trial involving the applicant, it could never be known whether or not the instructions given by the other accused were based on any of the applicant's confidential material. It could never be discounted that the instructions the legal representatives for the other co-accused were receiving from their clients were somehow informed by, or infected by, such confidential material. While it can be acknowledged that the onus of proof is on the applicant to show a positive injustice, just because the state of knowledge and/or dissemination of the confidential material is unknowable does not mean that any positive injustice is "speculative" as contended by the Crown.
7. In my view, unless the applicant was allowed to have a separate trial, not only would he be deprived from being able to conduct his defence in the manner of his choosing, it could also not be discounted that the other co-accused could gain a forensic advantage by gaining knowledge of his instructions or other private material. I do not accept the Crown's submission that the nature of the prosecution evidence and the limited cross-examination in the case when it partially ran before Button J means that the effect of the potential dissemination of the information would be inconsequential unless the applicant gave evidence, or that because he was giving evidence first, the other accused would find out in any event.
8. This submission fails to acknowledge the limitations of inferences available from the conduct of the previous trial. First, the previous trial before Button J was aborted before the Crown case was concluded, and notably before the cross-examination of certain prosecution witnesses was conducted. These potentially important witnesses included the officer in charge of the whole investigation, as well as the officer in charge of the search of a house where the accused Taufahema's bloodied shoes were found. Secondly, it simply cannot be known by the Crown how the applicant's lawyers, based on the applicant's instructions, may wish to craft their cross-examination, no matter how brief.
9. It can be acknowledged that the differences between this case and Strickland are significant. For instance, Strickland concerned whether or not a permanent stay should be granted because of an abuse of process resulting from the unlawful compulsory questioning of accused persons by investigative authorities and the dissemination of that information. Unlike Strickland, this is not an application for a permanent stay, but rather for a separate trial. Further, unlike Strickland, the impugned behaviour in this matter is on the part of a co-accused rather than the investigating authorities or the prosecution, and unlike Strickland the material or information which was improperly obtained by the co-accused in this matter is not precisely ascertainable. In this case, the material obtained can be described generally as notes, including information gained from notes, made over a period of several years, including notes by way of instructions, but the precise content of the notes will never be known as much of the material is now destroyed or missing. By contrast, in Strickland, the material improperly obtained was on oath and transcribed and therefore precisely ascertainable. There are other differences too which will not be explored further here.
10. However, whilst the principles set out in the line of cases culminating in Strickland emerged from a quite different context, given the fundamental nature of some of the propositions set out in that line of authority, some assistance can be gained in informing the proper approach to the determination of this application.
11. In particular, an accused has a right to a fair trial, or one which is not unfair: Strickland at [202] (Gordon J); Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 at 299 (Mason CJ and McHugh J); Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 at 56-57 (Deane J). From this, it flows that a co-accused should not be able to utilise confidential material unlawfully obtained by them from another accused to their forensic advantage, and to the forensic disadvantage of the person from whom it was unlawfully obtained. In Strickland, it was determined by the majority that practical unfairness did not have to be shown, rather, it was sufficient if what occurred affected the criminal trial in a fundamental respect. The effect of the impugned conduct was profound because the conduct of the investigating authorities had altered the position of the prosecution vis-a-vis the accused in a way that was incapable of remediation.
12. In this case the unlawfulness was not on the part of the authorities, but on the part of a co-accused. Clearly, misconduct on the part of the authorities is a systemically different problem to misconduct on the part of a co-accused towards another co-accused. However, notwithstanding that the overall systemic ramifications of the two types of conduct are quite different, in an individual trial, the outcome may indeed be similar. This is one such case.
13. Given the extraordinary nature of what has occurred in this case, including the unknown degree of dissemination of the stolen material, the inability to realistically contain further dissemination, the potential for the stolen information to be passed to other co-accused's counsel in the future, potentially leading to further aborted trials, the potential for forensic advantage to the co-accused and forensic disadvantage to the applicant potentially affecting the applicant's ability to run his trial in the manner he wishes to, this applicant, in the words of the plurality in Strickland at [98], faces an "indeterminate element of incurable prejudice" unless a separate trial is ordered.
14. In all of the circumstances I concluded that it was appropriate to grant this applicant a separate trial.

Endnotes

1. R v Nehme & Ors (No 1) [2022] NSWSC 138; R v Nehme & Ors (No 2) [2022] NSWSC 171; R v Nehme & Ors (No 3) [2022] NSWSC 205; R v Nehme & Ors (No 4) [2022] NSWSC 202; R v Nehme & Ors (No 5) [2022] NSWSC 254; R v Nehme & Ors (No 6) [2022] NSWSC 250; R v Nehme & Ors (No 7) [2022] NSWSC 1723.
2. R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202; R v Nehme, Price, Rahmin, Taufahema and Rizk (No 2) [2023] NSWSC 843; R v Nehme, Price, Rahim, Taufahema and Rizk (No 3) [2023] NSWSC 844; R v Nehme, Price, Rahim, Taufahema and Rizk (No 4) [2023] NSWSC 932; R v Nehme, Price, Rahim, Taufahema and Rizk (No 5) [2023] NSWSC 933.

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