R v Price; R v Rahim; R v Rizk; R v Taufahema (No 3)

1. [1]

   An application has been made under s 135 of the Evidence Act 1995 (NSW) on behalf of the accused Taufahema on the basis that a portion of an Electronically Recorded Interview with Suspected Person (“ERISP”) by one co-accused, the accused Rahim, would be unfairly prejudicial to the accused Taufahema. The application is made on the basis that in the impugned portion of that ERISP, amongst other things, the accused Rahim says that Joseph Nehme, who is not on trial here, said that the accused Taufahema was the stabber.

2. [2]

   Even though this evidence is not admissible against the accused Taufahema, and there is a body of evidence in the trial in relation to a whole range of matters which are only admissible against one or another of the accused in relation to which I am going to be directing the jury strongly and clearly, and have already done so, I am of the view that this particular portion of the ERISP, that is questions and answers 1257-1266 where the accused Taufahema is clearly nominated as the stabber, is so vivid a piece of evidence that it would be extraordinarily difficult, even in the face of very strong directions, for the jury to put it out of their mind.

3. [3]

   As to its probative value, I note that apart from the impugned passage, there are other portions in the interview where the accused Rahim distances himself from knowing that there was going to be any sort of armed robbery or armed attack. This is available for the jury to consider. I note in particular:

   1. (1)

      question and answer 852, about not knowing what was taped to Mr Nehme;

   2. (2)

      questions and answers 893-898;

   3. (3)

      question and answer 1122, which says:

   4. (4)

      questions and answers 1136, 1137, 1141, 1143 and 1144;

   5. (5)

      and particularly questions and answers 1145 and 1150:

Consideration

1. [4]

   If the impugned passage is excluded, the position of the accused Rahim can otherwise fairly be put before the jury by way of the questions and answers identified above. Accordingly, the probative value of the impugned passage in the accused Rahim’s case is substantially reduced when considered in the context of other available evidence which sufficiently puts his case before the jury. On the other hand, the danger of unfair prejudice to the accused Taufahema from the impugned passage in which someone is nominating him clearly as the stabber is substantial.

2. [5]

   I note that the Crown points to a reference to someone being the stabber at item 263 of Exhibit C (the Master Chronology) which is part of a telephone intercept, but I agree that that particular telephone intercept has much more ambiguity than this exceedingly clear passage nominating the accused Taufahema as the stabber.

3. [6]

   In my view the probative value of questions and answers 1257-1266 in the accused Rahim’s case is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused Taufahema. Accordingly, questions and answers 1257-1266 of the ERISP of the accused Rahim are excluded.