(1990) 51 Crim R 197
R v Chai (1992) 27 NSWLR 153
R v Dinh [2000] NSWCCA 536
R v Dolding [2018] NSWCCA 127
Source
Original judgment source is linked above.
Catchwords
[1988] HCA 39
Davidovic v R [1990] FCA 718(1990) 51 Crim R 197
R v Chai (1992) 27 NSWLR 153
R v Dinh [2000] NSWCCA 536
R v Dolding [2018] NSWCCA 127
Judgment (6 paragraphs)
[1]
JUDGMENT
On 29 November 2023, following applications by the accused Taufahema, Price and Rahim, I indicated to the parties via email that items 260, 263 and 293 of Exhibit C (the master chronology) would only be admitted against the accused who were party to those messages or calls.
As later clarified, given the accused Rizk chose to rely upon all the evidence in the trial, these three items would also be admitted against the accused Rizk.
I now set out the reasons for my decision.
The content of items 260, 263 and 293 will be set out later in the judgment.
[2]
General evidentiary principles
First, statements made by a third person co-accused or co-offender in the absence of the accused may be admissible in the case of an accused in different ways. In a case alleging an unlawful agreement or joint criminal enterprise, such as in this trial, such statements may be admissible against all accused as original circumstantial evidence going to prove the nature and scope of the agreement constituting the joint criminal enterprise between the parties. [1] It is uncontroversial in this case that the evidence up to and including the stabbing, and its immediate aftermath is admissible against all accused as original circumstantial evidence, albeit the jury would be directed that for calls not involving a particular accused, the jury should be careful in considering that evidence if an accused was not present, did not see or hear when relevant things that were said or done by their alleged co-offenders or other people, and could not confirm or deny the truth of what was said or done.
Second, acts or declarations which are in furtherance of the agreement are admissible to prove the participation of a person who is otherwise not a party to the act or declaration if it has first been ascertained that there is reasonable evidence, apart from that act or declaration, to show that the person is a party to the agreement. If there is reasonable evidence of an accused's participation in the agreement, the acts or declarations are admissible against an accused as evidence of truth of the statements made in the absence of the accused as an exception to the hearsay rule. [2]
A narrative of past events, however, is not an act or declaration in furtherance of the conspiracy. [3] As stated by the Court in Tripodi v The Queen (1961) 104 CLR 1 at 7 (Dixon CJ, Fullagar and Windeyer JJ):
"It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise."
As stated by Whealy J in Regina (Cth) v Baladjam [No 19] [2008] NSWSC 1441 at [70]:
"A narrative of past events would not be an act in furtherance of the conspiracy. One conspirator might be overhead telling third parties about the agreement that had been struck. He might even name the other parties to the agreement. These conversations would not necessarily be acts in furtherance of the conspiracy (that might depend upon the relationship between the conspirator and the third party and other matters). But they would be admissible, as would the other examples I have given, in going to the existence and scope of the conspiracy. The last illustration, where the single conspirator named the others, would be admissible directly against the speaker. But it would also be admissible, for a non-hearsay purpose, against the others who were not present. It would be evidence which, when taken together with other evidence, would tend to show the existence and scope of the conspiracy and the identity of the participants in the conspiracy. Of course, if there were no subsequence evidence of participation by the others, the evidence would cease to have relevance against them and the jury would be so instructed."
Also relevant to the consideration of this issue is s 135 of the Evidence Act 1995 (NSW) which reads:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.
[3]
Item 260
Item 260 consists of a text message recovered from the accused Rahim's phone. The text message was sent by the accused Rahim to his girlfriend at 4:10am on 7 December 2019, and stated "Ran into some shit cant go anywhere". This was sent after the stabbing of the deceased. The accused Rahim had recently been with the accused Taufahema.
Whilst this item is technically admissible against all of the accused on the limited basis that, when read together with the other evidence, it constitutes original circumstantial evidence showing that the accused Rahim was a party to the agreement, that is not the end of the matter.
Against the accused Rahim it is an admission. However, as against the accused Taufahema (who objected to this evidence being admitted against him) it cannot be relied upon for its truth unless it can be seen to be in furtherance of the agreement. In my view it is not in furtherance of the agreement. Rather, it is an example of a narrative of past events, especially the portion "Ran into some shit". As such, it is not admissible against the accused Taufahema as to its truth.
Given it is only admissible on a limited basis against all accused, and in circumstances where there is ample evidence showing that the accused Rahim is party to the agreement, pursuant to s 135(b) of the Evidence Act, I was of the view that it would be confusing for the jury for the evidence to be admitted against the accused Taufahema and the accused Price on the limited basis. The probative value of item 260 as against the non-parties to the text message is substantially outweighed by the danger that the evidence might be confusing (given the limited basis on which it would be admitted against the accused Taufahema and the accused Price as opposed to the way it is admitted against the accused Rahim and the accused Rizk). Accordingly, I determined that item 260 should not be admitted in the cases of the accused Taufahema or the accused Price.
[4]
Item 263
This item is an intercepted call between the accused Price and Mr Nehme starting at 4:23am on 7 December 2019, after the deceased had been stabbed. The accused Taufahema and the accused Rahim objected to its admission in their cases. The accused Price had called Mr Nehme and the transcript is as follows:
Nehme: "Yea?"
Price: "You all good?"
Nehme: "Ah, the, wasn't as straight forward as you said, huh?"
Price: "Huh?"
Nehme: "Do you know who the guy was?"
Price: "Luke?"
Nehme: "Yeah, little Aussie guy? "
Price: "Yeah."
Nehme: "Not a little Aussie guy."
Price: "He's a tall Aussie bloke."
Nehme: "Tall, big, big, big Aussie bloke. And h- he was strapped as well."
Price: "He what?"
Nehme: "Strapped, you know."
Price: "Was he strapped?"
Nehme: "Yeah and he's had his girlfriend in there. Do you know the missus? That's probably why he wasn't talking to you on the phone."
Price: "Ahhh."
Nehme: "We, we thinged him"
Price: "Yeah"
Nehme: "We got him, but um, so me and him went in; my mate".
Price: "Yeah"
Nehme: "Lucky I didn't one-out it but."
Nehme (Background): "Oh sorry."
Nehme: "Lucky we didn't one-out it 'cause he would have fuckin'. I kicked the door down the front, went in and then, um, his missus called the cops. We grabbed her and tried to find some shit and the neighbours came and we bolted."
Price: "So you didn't get nothing?"
Nehme: "Nothing, nothing, nothing."
Price: "I told you, in the jacket behind the door."
Nehme: "We grabbed the jacket, it wasn't a jacket, it was a fuckin' heap of shit there."
Price: "It's like a blazer."
Nehme: "As soon as you walk in to the right? As soon as you walk in from the front door to the right, yeah?"
Price: "No, to the left."
Nehme: "There's nothing on the left."
Price: "There is."
Nehme: "There's a hallway. No, not when you walk in."
Price: "Yea, there's a hallway you walk up."
Nehme: "Straight in the hallway and it's right."
Price: "I came in the back door."
Nehme: "So it's right and then there's a kitchen, living room on your right too."
Price: "Yes. No, he's the one on the other side."
Nehme: "What do you mean?"
Price: "His room's on the left. There's two rooms; that was his father's room."
Nehme: "No, his girlfriend's room, girlfriend. He was in there with his girlfriend."
Price: "Oh, so he told me that that was his dad's house."
Nehme: "No. His house; lives with his girlfriend; and they have a kid, in case you wanted to know."
Price: "No, there was no kid there."
Nehme: "Definitely a kid there."
Price: "There was no photos of the kid or anything."
Nehme: "There was a five or six year old there; there's a blonde girl."
Price: "Na, never seen her."
Nehme: "And there was a pram outside. Maybe it was a fuckin' son; I dunno. Yeah, na so we left. But he g- he- g- I'll tell ya' when I see ya', "so there's one, two, but the two at the back connected. Yes? So the first one's by itself; the two at the back are connected on the right, yeah?"
Price: "Yeah."
Nehme: "It's the first one; not the second one, not the last one?"
Price: "Yeah, it's the first one, not the last one; they're connected by sheds."
Nehme: "The garage."
Price: "Or garages, yes."
Nehme: "Two garages; that's the house, that's him; big guy. "
Price: "He's not fat, he's a sc- tall lanky guy."
Nehme: "He's fit, fit; steroids, muscle, big, big."
Price: "No, he wasn't like that when I seen him."
Nehme: "Massive, tattoos; yeah, yeah, yeah. Big guy."
Price: "He's got tat's on his arm."
Nehme: "Big guy, he's huge my mate got him but, didn't get anything but, fucked up."
Price: "Tall, white Aussie guy."
Nehme: "Hmm, um, um, um, um; tall, he's six-four, bro; the guys massive."
Price: "Yea, I told you he was tall."
Nehme: "You said tall: lanky, not tall: big, bro the guy's a fuckin' full fuckin' footy player cunt."
Price: " "
Nehme: "Yea, na
Price: "He must have hit the 'roids then."
Nehme: "What are you doin'?"
Price: "Well, I'm sitting up by myself."
Nehme: "Where's what's her face?"
Price: "Linda?"
Nehme: "Mmm."
Price: "She's on the, on the lounge asleep."
Nehme: "Who's there?"
Price: "Just me and her."
Nehme: "You and who."
Price: "Yeah."
Nehme: "You and her."
Price: "Yeah, just me and her."
Nehme: "I'll come round for something to eat."
Price: "The what?"
Nehme: "I'll come around."
Price: "You'll come after"
Nehme: "I'll come back after"
Price: "Well come on, it's your birthday."
Nehme: "Yeah, I know; I want money on my birthday, bro."
Price: "Well I want money too"
Nehme: "Yeah"
Price: "That would have been easy"
Nehme: "That was easy, we should have needed a few boys to hold him down, get the missus, everything. Anyway."
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."
Price: "Alright, how long ya' gonna be?"
Nehme: "I dunno, I wanna get money."
Price: "Alright well hurry up, I'm sitting up by myself."
Nehme: "Oh, poor baby, bro."
Price: "I know, you're leaving me ."
Nehme: "Where's that little lady? Call your little mate to come over as well."
Price: "What little mate?"
Nehme: "The little fuckin' hot one."
Price, "Listen, I'm the hottest one around, what are you talkin' about?"
Nehme: " "
Price: " "
Nehme: "Y'Allah, I'll give you a call soon."
Price: "Alright, Y'Allah bye."
Male voice (Background)
(Emphasis added.)
Again, this item is technically admissible against all of the accused on the limited basis that, when read together with the other evidence, it constitutes original circumstantial evidence showing the nature and scope of the agreement, and its participants (or some of them). Again, that is not the end of the matter.
Against the accused Price, the call contains admissions which need to be viewed in context and is admissible on that basis. The call clearly contains admissions made by Mr Nehme (who is not in this trial). However, as against the accused Taufahema or the accused Rahim (who objected to this evidence being admitted against them) it cannot be relied upon for its truth unless it can be seen to be in furtherance of the agreement.
In my view, none of the call can be seen to be in furtherance of the agreement. It contains a narrative of past events. As such, the call is not admissible against the accused Taufahema or the accused Rahim as to its truth.
Given it is only admissible on a limited basis, and there is ample evidence available to the Crown to show the nature and scope of the agreement, and its participants, pursuant to s 135 of the Evidence Act, I was of the view that it would be confusing for a jury for the evidence to be admitted against all of the accused on the limited basis. Further, parts of the call are potentially unfairly prejudicial to the accused Taufahema and the accused Rahim. Mr Nehme's statements that the accused Taufahema was the stabber cannot be tested by cross-examination. The accused Rahim is closely associated with the accused Taufahema on the night in question.
In all the circumstances item 263 should not be admitted in the cases of either the accused Taufahema or the accused Rahim on the basis that the probative value of the evidence as against these two accused is substantially outweighed by the danger that the evidence (admitted in such a limited way) might be confusing or unfairly prejudicial. Accordingly, I determined that item 263 should not be admitted in the cases of the accused Taufahema or the accused Rahim.
[5]
Item 293
This item is an intercepted call between Mr Nehme and the accused Rahim which started at 7:12pm on 7 December 2019 (that is, more than 12 hours after the stabbing of the deceased). The accused Taufahema and the accused Price objected to its admission in their cases. Mr Nehme had called the accused Rahim and the transcript is as follows:
Nehme: "Cuzzy."
Unknown Female: "Hey."
Nehme: "Please, please don't forget my glasses. Please."
Rahim: "Where are they? Where are they exactly?"
Nehme: "Out the front of your- you, you know where my bag was? Just in that grass section, there."
Rahim: "Alright, I'll have a look."
Nehme: "On the front lawn next to the footpath, please bro, I just got 'em bro'."
Rahim: "Alright, no worries."
Nehme: "Alright call me, call me and a- an- and the Samurai thingy and my stuff."
Rahim: "Alright, alright, no worries. Um, I'm not gonna call you, I'm gonna call you when I'm there."
Nehme: "Call you when you're, when you're where?"
Rahim: "I'm not gonna, like, keep the c- phone calls to a minimum."
Nehme: "Bro, what the fuck? What's wrong with you?"
Unknown Female: "I don't know."
Nehme: "- You're starting to freak me ou[t], bro."
Rahim: "Hmm?"
Nehme: "Is it bad?"
Rahim: "Kind of, yea; pretty much, bro."
Nehme: "About the other night, aye?"
Rahim: "I'm gonna come see ya' anyway."
Nehme: "Where do you wanna meet? Make it quicker."
Rahim: "Huh?"
Nehme: "Meet me at Hunters Hill; meet me at Lane Cove."
Rahim: "Where Lane Cove where? What time?"
Nehme: "Just off Hunters Hill, Parramatta Road. Fuck, where do you wanna meet? Where do you wanna meet?"
Rahim: "Give me a time and place and I'll be there. I'll be on time and please be on time."
Nehme: "Alright, that's what I'm saying; I'm at a family party ."
Rahim: "What's what I'm saying; do, do your thing and tell me a time and place."
Nehme: "Yea, that's what I'm saying but the family barbecue is in Riverview."
Rahim: "Okay."
Nehme: "So l- Lane cove shops or something?"
Rahim: "Lane Cove? Is the a Maccas at Lane Cove? I don't know; Maccas is just easy."
Nehme: " "
Rahim: "Where?"
Nehme clears his throat
Rahim: "Did you say Top Road?"
Nehme: "Where do you want me to meet you, bro? Fucking say something."
Rahim: "I don't know where you are for me to fucking say come here or go there."
Nehme: "Want to meet in Hunters Hill? or the city."
Rahim: "Alright, Hunters Hill, um, tell me where at Hunters Hill."
Nehme: "Oi, if you come where you're from, the closest would be probably Hunters Hill easy."
Rahim: "Okay, Hunters Hill; where, where, where?"
Nehme: " "
Rahim: "Give me a street name; I don't know Hunters Hill."
Nehme: "Have you left?"
Rahim: "No, I'm about to leave; I'm gonna leave in about twenty."
Nehme: "Ah, Hunters Hill Woolwich Road; Hunters Hill Hotel, there you go."
Rahim: "Where?"
Nehme: "Hunters Hill Hotel."
Rahim: "Hunters Hill Hotel, alright I'll see, I'll see you there."
Nehme: "Ah."
Rahim: "I'll just send you a blank message when I'm leaving."
Nehme: "Y'Allah."
Rahim: "Alright, bye."
Nehme: "Let me know if you find the, the glasses, huh?"
Rahim: "Yea, I will, I will."
Nehme: "Mad cunt, bye."
This item is technically admissible against all of the accused on the limited basis that, when read together with the other evidence, it constitutes original circumstantial evidence indicating the identity of at least two of the parties to the agreement, as well as evidence of a samurai sword being associated with Mr Nehme (one having been found at a property he had attended at a time proximate to the stabbing). Again, that is not the end of the matter.
Against the accused Rahim, the call contains admissions which need to be viewed in context and is admissible on that basis. However, as against the accused Taufahema or the accused Price (who objected to this evidence being admitted against them) it cannot be relied upon for its truth unless acts or utterances within it can be seen to be in furtherance of the agreement.
In my view, none of the call can be seen to be in furtherance of the agreement. As such, the call is not admissible against the accused Taufahema or the accused Price as to its truth.
Given it is only admissible on such a limited basis against the accused Taufahema and the accused Price, pursuant to s 135 of the Evidence Act I was of the view that it would be confusing for a jury for the evidence to be admitted against these two accused on the limited basis. Its probative value in the cases of the accused Taufahema and the accused Price is very limited. In my view, its probative value is outweighed by the danger that the evidence (admitted in such a limited way) might be confusing. Accordingly, I determined that item 293 should not be admitted in the cases of the accused Taufahema or the accused Price.
[6]
Endnotes
Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39; Tripodi v The Queen (1961) 104 CLR 1; R v Masters (1992) 26 NSWLR 450 at 461; R v Chai (1992) 27 NSWLR 153 at 191; R v Louden (1995) 37 NSWLR 683 at 691-694; R v Dinh [2000] NSWCCA 536 at [31]-[59]; Davidovic v R [1990] FCA 718 at 9; (1990) 51 Crim R 197 at 207; Tsang v DPP (Cth) [2011] VSCA 336; (2011) 255 FLR 41 at [35]-[49]; Regina (Cth) v Baladjam [No 19] [2008] NSWSC 1441.
See fn 1. See also s 87(1)(c) of the Evidence Act 1995 (NSW).
R v Dolding [2018] NSWCCA 127; (2018) 100 NSWLR 314 at [53]-[55].
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: 06 May 2024