R v Rahim; R v Rizk

1. [1]

   HER HONOUR: Bilal Rahim (“Rahim”) and Sherene Rizk (“Rizk”) both stand charged with offences connected with the death on 7 December 2019 of Luke Lembryk. The accused were arraigned on 7 June 2021 on a fresh joint indictment, presented with leave, charging each as follows:

2. [2]

   Pleas of not guilty were entered to all charges.

3. [3]

   Three other individuals – Joseph Nehme, Lisa Price, and Viliami Bui Taufahema – also face related charges, although none were involved with the present proceedings, which were held prior to the commencement of the trial of the accused.

4. [4]

   The purpose of the proceedings was to determine the admissibility of electronically recorded interviews with investigating police in which each of Rahim and Rizk separately took part. Each accused challenges the propriety or lawfulness of the respective interview, and seeks to have the particular evidence excluded.

Background: The Circumstances Surrounding the Death of Mr Lembryk

1. [5]

   The Crown Case Statement formed part of the material before the Court for the purposes of the proceedings on the voir dire. The following brief account of the circumstances surrounding the death of Mr Lembryk alleged by the Crown is drawn from it.

2. [6]

   In the second half of 2019 Luke Lembryk lived with his mother at an apartment on William Street at Condell Park.

3. [7]

   In August of that year Mr Lembryk came to meet the co-accused Lisa Price, and another woman, Stavroula Gardikiotis, via a dating website application, Tinder, with the three meeting up and going together to Mr Lembryk’s apartment. At his apartment the women observed that Mr Lembryk had large amounts of cash in his pockets, perhaps as much as $15,000. They discussed robbing him of the money. Ms Price also discussed that possibility with others, including the co-accused Nehme.

4. [8]

   In December 2019 Nehme’s phone was being monitored by police, by authority of a warrant. Calls between Nehme, Taufahema, Rahim, and Price on 6 and 7 December 2019 were intercepted. In these calls the participants discussed “doing a job” at Condell Park. Nehme contacted Rahim, asking him to get a car for a job by which he could make money. He also contacted Taufahema, asking him to join in the enterprise. When Nehme made these calls he was at the home of the accused Rizk, with whom Nehme was at that time in a relationship. Price was also present, and both women can be heard in the background to Nehme’s telephone calls.

5. [9]

   Arrangements were made via telephone for Rahim to get a car and meet with Nehme and Taufahema for the Condell Park “job”. Rahim collected a white utility and picked Taufahema up; they met Nehme, who travelled separately on a motor cycle to William Street Condell Park. Once there, Nehme spoke with Price by telephone, and she confirmed the apartment number for Mr Lembryk, and provided a description of the apartment. Shortly after that conversation at 2:35am on 7 December 2019, CCTV captured three figures walking towards the apartment.

6. [10]

   Access to Mr Lembryk’s apartment was gained by cutting and dislodging a flyscreen, after which Nehme and Taufahema climbed through the window. Both Mr Lembryk and his mother, Robin Bradley, were asleep at the time.

7. [11]

   Ms Bradley was woken by loud thumping noises. She ran out of her bedroom to investigate and saw two men, one of whom ran towards her and began punching her repeatedly in the chest. She was grabbed by the hair and thrown against a wall, after which the second male struck her a number of times. Both men then fled. CCTV captured images of three men running from the area, and a white utility and motor cycle driving away from William Street.

8. [12]

   When Ms Bradley went to her son’s room she saw him bent forwards holding his stomach. He was bleeding, and said to his mother, “I’m going to die mum, I’m going to die”. He collapsed to the floor. Ms Bradley telephoned the emergency operator and emergency services attended the apartment. Mr Lembryk was pronounced dead at 3:25am. He was later found to have sustained a stab wound to the chest which had transected the lower part of his heart. He had other stab wounds to his left chest, left leg, left upper arm, and left hand, as well as a number of bruises and abrasions.

9. [13]

   A bloody knife blade, without a handle, was found inside the apartment after the stabbing.

10. [14]

    CCTV at other locations captured Rahim, Nehme and Taufahema together shortly after the home invasion. In telephone conversations between Nehme and Price and Nehme and Rizk, Nehme complained that the job had not been as easy as expected. He told Price that he had kicked the door down but that “his missus called the cops” and they had gotten “nothing”. He said that his mate had “stabbed him”. To Rizk, Nehme said that he was trying to “sort it out and not tell him that you gave us the job because the job was shit”.

11. [15]

    Although heard together, the objections to evidence by Rahim and Rizk are separate, and advanced on different bases. They will be considered in turn.

The Admissibility of an Interview with Rahim

1. [16]

   The accused Rahim participated in an interview with Detective Senior Constables (“DSC”) Matthew Colefax, Ben Walsh, and Nathan Surplice on 10 December 2019. He contends that he was offered an inducement prior to the interview and, as a consequence, the evidence was improperly obtained and should be excluded.

2. [17]

   The accused Rahim gave evidence before the Court on 7 June 2021. He said that he had been arrested at his home in Auburn late on 9 December 2019 and taken to Auburn Police Station, where he was placed in a holding cell in the charge room. He said that he was approached by a police officer:

3. [18]

   The accused Rahim deposed that he was alone with the officer at the time; a uniformed police officer was at a desk five or six metres away. When asked to give the exact conversation between him and the officer he said:

4. [19]

   The accused told the Court that he believed he would be charged with murder unless he gave an interview. He said:

5. [20]

   He gave no further detail concerning the second approach he said was made to him.

6. [21]

   Rahim said that the officer came back to the charge room a short time later and escorted him to an interview room. Although he was given a standard caution he answered the police officers’ questions regardless, because he believed that:

7. [22]

   The accused was asked by his counsel about a short break taken in the middle of the interview. He deposed that, during a break taken for him to be provided with some water, he asked the officer who stayed with him, DSC Surplice, if the officer thought that he was “full of shit”. The officer had responded that he did.

8. [23]

   At the end of the interview, when a senior officer entered the room to speak with the accused about the way in which the interview was conducted, the accused said that he made no complaint about the inducement offered to him because:

9. [24]

   At the conclusion of the interview the accused Rahim told the Court that a buccal swab was obtained from him. He did not know that the forensic procedure was electronically recorded.

10. [25]

    In cross-examination the accused agreed that he had been cautioned by police when he was arrested at his home and, when taken to Auburn Police Station, he had been given a document which set out his rights when in custody. He was aware at that stage that he was entitled to telephone a lawyer for assistance, but chose not to do so, believing legal assistance was unnecessary.

11. [26]

    Having participated in the interview, the accused agreed that he did not make any complaint to the adopting officer who entered the interview room at the end of the procedure. He said that he had never complained to any police officer at any time about the inducement he was offered, only telling his lawyers about it “probably about three or four months ago […] maybe more” (T21:24).

12. [27]

    He agreed that he had understood on being arrested that he was under arrest for the murder of Luke Lembryk, and that he was being interviewed about Mr Lembryk’s murder. He agreed that he was asked and answered questions as follows:

13. [28]

    Although the accused said that he felt “quite pressured” into answering questions he acknowledged that he had a choice:

14. [29]

    The accused accepted that, during the course of the interview, he had “significantly changed [his] story”, particularly after he had been shown the intercepted telephone calls in which he was recorded in conversation with Nehme (at T25:36). He said that, because he was concerned that the officers did not believe his account of events because of the “change” to his “story”, he asked them during the short break in the interview if they thought he “was bullshitting”. He denied that he had only become aware of the telephone intercept product after the short break, and after he had asked if the interviewing officers believed him.

15. [30]

    The accused explained his failure to tell the adopting officer about the inducement as:

16. [31]

    The accused said that he “vaguely” recalled saying to police during the forensic procedure, “You guys want that thing”, whilst making a stabbing gesture with his hand. He agreed that DSC Colefax was not present at that time, and that he was endeavouring to provide the police with information that he thought might assist them, to better his position.

17. [32]

    DSC Matthew Colefax is the officer in charge of the investigation into the death of Mr Lembryk, and was present during the arrest of the accused Rahim, at about 10pm on 9 December 2019. His statement, commenced on 13 January 2020 and signed on 26 March 2020, formed part of the Crown’s case. The officer’s statement provides a broad summary of the investigation and evidence gathered. The Crown called DSC Colefax to give evidence on the voir dire.

18. [33]

    DSC Colefax spoke with the accused when he was arrested, and administered a caution to Rahim in standard form. At the time of the arrest, police already had the content of the telephone intercepts of Nehme’s phone, including those in which DSC Colefax believed Rahim was recorded speaking to Nehme about the home invasion at Condell Park. The accused then remained present as a search warrant was executed, with the accused again cautioned. A video recording of the procedure was made.

19. [34]

    After arrest, Rahim was taken by other police officers to Auburn Police Station, where he was given into the custody of the Custody Manager then on duty. After a period, he was interviewed. Detective Colefax said:

20. [35]

    The officer denied approaching the accused as he sat in a holding cell and telling him to co-operate if he wanted to avoid being charged with murder. He said that the interview commenced, being suspended briefly part way through so that arrangements could be made to play the intercepted telephone calls to the accused. He was asked about any conversation with the accused during the suspension, responding:

21. [36]

    Following the interview Detectives Walsh and Surplice conducted a forensic procedure with the accused. DSC Colefax stated that:

22. [37]

    DSC Walsh was not called, being on sick leave from duty. DSC Surplice gave evidence on 7 June 2021, and his statement of 26 May 2021 was in evidence. DSC Surplice was present when the accused was arrested and cautioned by DSC Colefax. When told he was under arrest for the murder of Luke Lembryk, the accused responded “I don’t even know who that is”. A search warrant was executed with another officer, DS Lysaght, again cautioning Rahim.

23. [38]

    DSC Surplice said that he had no involvement with Rahim at Auburn Police Station prior to seeing him brought into the interview room, although he had earlier seen the accused in the charge room, without speaking to him.

24. [39]

    He said that, during the short suspension of the interview the accused had asked if they thought he was bullshitting, and DSC Colefax had responded in the affirmative. The conversation was placed on record when the interview resumed.

25. [40]

    After the interview concluded a forensic procedure was conducted with Rahim. During the course of the procedure Rahim had asked if they “want the…”, making a stabbing motion with his hand. After the procedure, the accused said that Taufahema had had a knife handle with him at Lidcombe Hotel, which Nehme had disposed of in a bin in the area.

26. [41]

    Later, DSC Surplice went with DSC Walsh to the area of the Lidcombe Hotel, where the officer saw four large garbage bins, all of which were very full. He had “a look into the bins” but didn’t see a knife handle.

27. [42]

    The Custody management record relating to the accused was in evidence as Ex VD-A:19. The record notes the following relevant information, all relating to events of 10 December 2019:

28. [43]

    As to any contact between the accused and any other person when the accused was in the charge room, the following is recorded:

29. [44]

    There is no reference to DSC Colefax speaking with the accused in the dock.

30. [45]

    The Crown Submits that the evidence of the accused as to the inducement said to have been made by DSC Colefax is inherently unlikely, unsupported by any other evidence, and should be rejected. The evidence of the interview between Rahim and police should be admitted.

31. [46]

    The Crown points to the frequency with which the caution was administered to the accused, his understanding of it, and his failure to raise with the custody officer or any other person until earlier this year the inducement he now asserts was offered to him, as inconsistent with any inducement being made. It is argued that the overall content and structure of the interview is also unsupportive of any inducement requiring the accused to co-operate. The accused initially gave police an account of having no involvement in events at Condell Park until such time as he was made aware of the evidence the investigating officers had in their possession, after which time his account of events changed significantly. Further, the accused’s attempt to bargain for a “benefit” after he became aware of the evidence against him contradicts the suggestion that he had already struck a deal favourable to him, as does his failure to complain to his legal representatives about the inducement until earlier this year. DSC Colefax’s evidence was clear and persuasive and should be accepted.

32. [47]

    Mr Young of Senior Counsel for the accused submits that, an issue having been raised by the accused as to oppressive conduct by the investigating police pursuant to s 84 of the Evidence Act, and that issue not having been negatived by the Crown, the Court should conclude that the admissions made by the accused in the interview were influenced by the conduct, and it should be excluded. The Court was referred to a number of authorities, including R v Helmhout (No 2) [2000] NSWSC 225; Higgins v Regina [2007] NSWCCA 56, and Habib v Nationwide News (2010) 76 NSWLR 299.

33. [48]

    The admissibility of evidence of admissions said to have been made by an accused person is governed generally by Part 3.4 of Chapter 3 of the Evidence Act. Relevantly, the accused relies upon s 84 of the Act, which provides:

34. [49]

    Section 90 provides a discretion to exclude evidence of an admission in certain circumstances, and there are other exclusionary provisions: ss 135, 137, 138.

35. [50]

    Here, the accused argues that the conduct of DSC Colefax in “pressuring” him to participate in an interview was oppressive, and the admissions that were made as a consequence of that oppressive conduct should be excluded from evidence. That contention is based upon facts asserted by the accused and disputed by the Crown, to the effect that the detective approached the accused when he was alone in a holding cell and told him to co-operate with police or be charged with murder, and that the interview that the accused subsequently gave was influenced by that conduct.

36. [51]

    To accept that proposition the Court would have to broadly accept the accused’s evidence that an inducement was held out to him, and that he agreed to be interviewed only because of the promise that he would not be charged with murder if he did so. That is a determination of fact. For a number of reasons, I am not able to accept the evidence of the accused about either the asserted conduct of DSC Colefax, or his reasons for participating in the interview.

37. [52]

    As the Crown pointed out, there is no support anywhere in the evidence for the accused’s claims about the conduct of Detective Colefax, and much that casts strong doubt upon them.

38. [53]

    The accused told the Court that he knew it was DSC Colefax who had made the offer to him because the officer was wearing a suit. As is evident from the recording of the interview (Ex VD-A.11), the officer was not dressed in a suit, and the accused’s evidence on this point lacks credibility. It had the air of a guess, based on knowledge of the usual attire of detectives.

39. [54]

    It is notable that the accused was told, by three different police officers, on at least four different occasions, that he had a right to silence. That is, the standard caution was administered to him and he was told that he did not have to say or do anything but that, if he chose to say or do anything, it would be recorded and could be used in evidence against him in court. The accused was given this warning on arrest, by DSC Colefax; when the search warrant was executed, by Detective Sergeant Lysaght; on entering into custody at Auburn Police Station, by the Custody Officer, Sergeant Nicole, who additionally read aloud to the accused the Part 9 Document detailing his rights in custody (Ex VD-A.19); and again at the commencement of the interview, by DSC Colefax. There is nothing in the evidence, and nothing about the accused’s presentation in the interview or during the forensic procedure to suggest that he did not understand his right to silence, or was incapable of exercising it, or was vulnerable to being overborne for some reason. To the contrary, the accused appeared to well understand the procedure, and he conceded in his evidence that he understood his rights, including his right to contact a legal representative prior to any interview.

40. [55]

    Although the accused initially suggested that he was not aware of his rights, and the Custody Officer did no more than ask him if he was alright and got him to sign papers at the end (T18), he later conceded that he had been made aware of his rights prior to the interview commencing. His evidence initially was:

41. [56]

    That evidence is contradicted by the Custody Management Record, which was admitted without objection as Ex VD-A.19 and without the author required for cross-examination; by the accused’s acknowledgement at the commencement of the interview that he had been advised of and understood his rights (Q&A8 – 10 Ex VD-A.10-11); and it was contradicted later in his evidence by the accused:

42. [57]

    Understanding his rights as he did, and with the apparent capacity to exercise them, it is unlikely that the accused’s desire to remain silent would have been altered or overborne by a police officer’s suggestion that he co-operate if he did not want to be charged with murder.

43. [58]

    The accused’s presentation in the interview is equally unsupportive of that proposition. There is nothing about his demeanour which points to an individual who is acting under pressure and doing something he did not want to do because of the conduct of an investigating official. Rather, he presents as assured and at all times acting in what he thought were his best interests.

44. [59]

    That is borne out to a degree by the accused’s answers to particular questions, and by his contradictory accounts of relevant matters.

45. [60]

    Initially in the interview the accused gave an account of having contact with the co-accused Nehme on the date of Mr Lemryk’s murder, telling detectives that Nehme had asked to borrow his ute and the accused drove to Nehme’s house, “chucked him the keys” and waited there until he returned. He said that Nehme returned his keys and the accused went home. He professed to be “hazy” about the details because of “the drugs”. He could not say why Nehme wanted to borrow his ute.

46. [61]

    The accused went on to add and significantly change detail, much of it contradicting his initial account.

47. [62]

    Having said that he drove to Nehme’s house and Nehme left, the accused changed that account, saying that he and Nehme had in fact “hung out” for some hours at Nehme’s apartment, taking drugs and talking, before they left the apartment together, travelling to Bui’s house [Bui being Taufahema] to collect him, at Nehme’s request. Earlier, (at Q&A94 – 96), the accused had claimed not to know Bui.

48. [63]

    Having said “we picked him up”, the accused amended that to claim that he picked Taufahema up by himself, having been given the address by Nehme, and driving to get Taufahema before arriving at Nehme’s home. Later still, he said that Nehme had not asked to borrow his ute until after the two men had gone to collect Bui.

49. [64]

    In a further shift the accused next said that they did not return to Nehme’s house after collecting Taufahema; instead he said they went to Condell Park, where he understood he was to drop Taufahema and meet Nehme. Having sat in the car with Taufahema and Nehme smoking drugs (later amended to cigarettes) in a residential street there, the accused said that Nehme asked him to wait and he did. Nehme and Taufahema left the car and, after a time, came running back to it. After that, they drove to Nehme’s home and the accused said that it was then that Nehme asked to borrow his ute, after which “they took off” (Q&A315).

50. [65]

    The accused added some further detail, stating that he had to get fuel after leaving Condell Park, and arranged in a phone call to meet Nehme, who was riding a motor bike, at a petrol station where he stopped for petrol. Thereafter they drove to Nehme’s home, where Nehme asked to borrow the accused’s ute, or asked him to drive, with the accused declining, because he “knew it was fuckin’ bad shit” (Q&A459). The accused said that Nehme and Taufahema left with his ute. He claimed to have no idea what had happened at Condell Park, although Nehme and Taufahema were being “secretive”.

51. [66]

    The accused claimed that he waited at Nehme’s house for six, seven, or eight hours, before Nehme returned to his home and gave the accused the keys to the ute. He said he knew nothing about what had happened at Condell Park until he saw it on the news.

52. [67]

    Although none of the officers expressed any disbelief at the accused’s varied claims to that point, the accused, unprompted, said:

53. [68]

    He told the detectives:

54. [69]

    DSC Surplice pointed out to the accused that his version of events had changed during the telling and said he had “some concerns” about the truthfulness of the account. The accused responded by claiming to have started to recall events. He said:

55. [70]

    By that response, the accused both signalled his clear comprehension of his rights when at the police station, and his voluntary participation in the interview. His comment that he knew he would not get bail is inconsistent with his evidence that he understood himself to have a “handshake agreement” with DSC Colefax that he was not going to be charged with murder. Why, having that belief, would he be so certain that he would not be able to leave the police station once he had fulfilled his side of the bargain and “co-operated”?

56. [71]

    The accused was again reminded by the interviewing officers that it was his choice to speak in the interview; he continued to answer questions.

57. [72]

    Everything about the accused’s presentation and what he said to the detectives is consistent with the accused having decided to take part in the interview, intending to give an exculpatory account of events that accounted for his presence at Condell Park, without conceding that he had any knowledge of or role in what occurred there. It is not consistent with an accused person trying to “co-operate” to avoid being charged with murder.

58. [73]

    It is not insignificant that, during a five minute break in the interview, the accused asked the detectives if they thought he “was bullshitting” them. Detective Colefax replied that he thought so, but said he would not discuss it further without the conversation being recorded, something the accused acknowledged in the interview and in his evidence. The impression that conversation - which was properly placed on the record by DSC Colefax as soon as the interview resumed (at Q&A848 – 851) – gives is that the accused was trying to find out whether there was any chance that the officers had accepted his exculpatory account. He continued to deny after the short suspension that he had known anything about the incident at Condell Park. He denied taking part in a break and enter, or a robbery, or driving for Nehme as he committed those offences.

59. [74]

    When told by the police officers (at Q&A869) that Nehme’s telephone had been intercepted the accused’s account of events changed, progressively, and quite profoundly. As the intercepted calls were played to the accused he: claimed not to know what was being spoken of; said he believed that what was spoken of was a drug deal; claimed it was just “meth talk […] crack head talk”; asserted that it might have been a “drug rip” that was discussed, but it was not a break and enter; said that a drug rip was a “snatch and run” and not a robbery; conceded that the job spoken of could have been a robbery of a drug dealer, but not one involving breaking in to a house; acknowledged that he did have a role in the “job”, being to “stand there and look tough” (Q&A951); that he had to make sure everyone does their part and oversee things; and, at Q&A1205, to having been made aware during the drive to Condell Park that a robbery was to be carried out there.

60. [75]

    The accused continued to deny having any knowledge of the stabbing of Mr Lembryk, saying only that he thought Taufahema and Nehme “got chased out”; much later in the interview, however, he told detectives that Nehme had told him afterwards that the deceased “was a big guy and […] Bui stabbed him” (at Q&A1355).

61. [76]

    Later again in the interview the accused was asked if he had any information about Lisa [Price] with DSC Walsh suggesting to him “Now’s the time to be upfront”. The accused responded:

62. [77]

    That answer of itself undermines the accused’s claim that he already thought that he had a deal with the police, that he would not be charged if he gave an interview. That he asked about a “benefit” undermines his claim in evidence that there had been an inducement held out to him at an earlier time, and a “handshake” agreement reached.

63. [78]

    When DSC Colefax told the accused that, “We’re not gunna give you anything for telling us” the accused said only:

64. [79]

    He made no protest about having been already promised that he would not be charged if he answered questions, and no complaint about the officer’s statement that he would not be given anything, even though this was a repudiation of a deal earlier made, if the accused’s evidence to the Court is accepted. That too is inconsistent with any inducement having actually been offered.

65. [80]

    Although the accused pointed to his question to the interviewing officers at Q&A1466, “You still think I’m full of shit” as significant, it seems to be no more than a reference to the accused’s earlier question along the same lines, and Detective Colefax’s affirmative answer.

66. [81]

    It is notable that the accused, having been told by DSC Colefax that he would not be given anything for his answers to questions, made no complaint to the adopting officer when specifically asked if any “threat, promise, or inducement” had been held out to cause him to give the answers recorded in the interview (at Q&A1477 and 1478). The accused could offer no explanation in evidence for his failure to raise the inducement with the custody manager, saying only “In hindsight, I, I agree I shouldn’t have said that” (T32:09).

67. [82]

    His failure to complain, or to highlight the inducement offered to him, is inconsistent with the accused’s evidence that DSC Colefax had in fact offered him an inducement. His failure to tell his legal representatives until “three or four months” ago or “maybe more”, that being at least a year after he was charged, is also inconsistent with the accused’s assertion in the evidence about the conduct of the police.

68. [83]

    A choice to participate in an interview with police officers that is later regretted is to be distinguished from participation in an interview because of an absence of any choice at all. The evidence in the former situation is admissible; evidence in the latter is not.

69. [84]

    That the accused clearly volunteered to give investigators information as to the location of the knife during the course of the forensic procedure that followed, as I conclude he did, highlights the exercise by him of a free choice to speak to police, exercised then, and in the recorded interview.

70. [85]

    Having seen both the accused and Detectives Colefax and Surplice give evidence on this question, I do not accept that the accused’s account of events is a credible or reliable one, or that the conduct of the police officers was such as to require the exclusion of the recording of the interview pursuant to s 84 of the Evidence Act. I accept the evidence of DSC Colefax, and am satisfied that the admissions contained in the interview, and the making by the accused of those admissions, were not influenced by any oppressive conduct by investigating police officers. I would not exclude the evidence pursuant to s 84.

71. [86]

    No issue was raised as to the admissibility of individual questions and answers, and neither party made any submissions on the subject. I have not addressed that aspect of the matter.

72. [87]

    I am satisfied that the accused’s words and actions made during the forensic procedure were not influenced by any oppressive conduct by DSC Colefax; rather, it is evident that the accused - voluntarily and without any prompting or request - intimated to the officers that he had information about the whereabouts of the knife used to stab Mr Lembryk. The evidence of the recording of the forensic procedure and the accused’s words and actions depicted, is admissible.

73. [88]

    I do not understand the Crown to be intending to adduce at trial any evidence of the subsequent conversation between the accused and detectives, which was neither recorded nor adopted. That conversation would be inadmissible in my opinion, having regard to the failure of investigating officers to record the conversation, despite the ease with which that could have been done.

The Admissibility of the Interview with Rizk

1. [89]

   The alleged involvement of Sherene Rizk is as an accessory before the fact of the murder of Luke Lembryk. Broadly, the allegation is that she provided the premises from which Nehme made arrangements for the home invasion at Condell Park, was available to transport a member of the enterprise, and assisted Nehme in arming himself for the planned robbery. She was arrested on the morning of 17 December 2019 and participated in an electronically recorded interview with Detective Sergeant Kritesh Lal and DSC Kieran Deas soon after her arrest.

2. [90]

   The accused argues that the interview should be excluded from evidence at her trial as it was illegally or improperly obtained by investigating police. She raises three complaints about the circumstances in which the interview was made:

   1. (1)

      her arrest was unlawful, as there were no reasonable grounds for DS Lal to form a suspicion that she had committed an offence;

   2. (2)

      the interview was unlawful as police persisted in questioning the accused after she had sought to exercise her right to silence; and

   3. (3)

      her detention was unlawful, as she was not charged within the permitted period for investigative detention.

3. [91]

   The accused read an affidavit from her solicitor, Jimil Amiri, sworn on 24 May 2021, in which Mr Amiri produced the transcript of the electronically recorded interview of 17 December 2019.

4. [92]

   The interview commenced at 11:40am on 17 December 2019, and concluded at 2:55pm. At the outset of the interview, DS Lal gave Ms Rizk the standard warnings, including:

5. [93]

   After giving some personal details the accused confirmed the circumstances of her arrest. She agreed that DS Lal had rung her doorbell at 9:30am that morning, and told her that she was “under arrest for armed robbery and murder”. She agreed that she had been cautioned, with the officer explaining that she “didn’t have to… say or do anything and if [she] said or did anything it would be recorded and used as evidence” (Q&A59 – 62). The accused further confirmed that she had understood what she was told (Q&A63).

6. [94]

   At the time of the accused’s arrest a search warrant had been executed, and a small amount of cannabis had been found. That discovery was noted and the accused was again cautioned, prior to being asked some questions about the substance (Q 109 – 113). The accused was next asked about an amount of methylamphetamine, or “ice” found at her home, with a caution administered to her for a third time (Q&A123 – 127). (It is assumed that the Crown will not seek to lead this otherwise irrelevant material at trial).

7. [95]

   The accused confirmed that, on being arrested, she was taken to the local Police Station, where she was introduced to the Custody Manager. She acknowledged that her rights were explained to her and that she had understood them (Q&A140 – 142).

8. [96]

   There followed some discussions about the mobile telephones the accused had recently used or had access to. The accused told police that her most recent phone before her current phone was an “Alcatel” phone which she had used for about three of four months, with a Vodaphone SIM card registered in her name. She stopped using the Alcatel phone on 6 December 2019 because her friend “Joey” [Nehme] dropped it and the phone broke (Q&A154).

9. [97]

   The accused told the detective that she had known Nehme, a “Lebanese Aussie”, who she said was 26 or 27 years old, for about “3 to 4 months” and had met him through a mutual friend, Ali. The accused said that Nehme’s number was saved into her mobile phonebook and officers retrieved it during the interview. The accused said that some of the contacts on her phone were not her own contacts; she thought that because she had been signed into her google account on Nehme’s phone, some of his contacts had synchronised over to her phone (Q&A176 – 182, Q&A193).

10. [98]

    The accused was asked about the circumstances in which her Alcatel phone had been broken. She said that on the evening of Friday 6 December 2019, Nehme was at her place to collect some of his laundry that he had left in the dryer about a week (Q 208 – 212). He had arrived at her house “about 8.00 or 9.00 maybe pm”. The accused said that she and Nehme were just friends and nothing more. She said that she and Nehme had been talking to a friend on loudspeaker and “the phone just fell and broke”. The accused said that she threw the Alcatel phone into the bin, transferring her SIM card to her mother’s old white iPhone (Q&A278). As the iPhone was not charged, she signed into her Google account on Nehme’s phone to obtain her contacts.

11. [99]

    The accused said that she had borrowed Nehme’s phone as the iPhone could not connect to the internet and gone to visit a friend. She provided information concerning that friend (Q&A294 – 316). When she arrived at her friend’s, no one was at home. As she waited for his return, she said her friend, Lisa, called her on Nehme’s phone and they spoke (Q&A 241, 243).

12. [100]

    After a time the accused said that she returned home; she thought it was around midnight [on 6 – 7 December 2019] when she arrived back at her house (Q&A 326). Nehme had remained at her place and tried to fix the iPhone (Q&A 291). Her friend Lisa [Price] was also there, as was a “Bangladeshi guy” who the accused referred to as “Messy… but his name’s Mohammed” (Q&A338, 353). She explained who Messy was and told the police how to access Messy’s phone number in her phone.

13. [101]

    The accused was asked by police what was discussed at her house, responding that the four of them talked about the iPhone and how Nehme couldn’t fix it (Q&A341). Shortly after Nehme had looked at the time and realised it was his birthday, so the others wished him happy birthday (Q&A 353). She said she and Messy had been in the kitchen whilst Nehme and Price had been in the lounge room (Q&A359). Although it is a small area, the accused said that she was not paying attention to what Price and Nehme were talking about.

14. [102]

    The accused said that Nehme left soon after and she fell asleep. When she woke up on 7 December 2019, Messy and Price were gone. She said that Price came around later on the Saturday.

15. [103]

    The accused gave an account of her movements, in pottering about the house, going to a local store and so on. When discussing the subject of mobile telephones, the accused said that on the Sunday Price had phoned Nehme for her, to ask him if he had her phone. She gave an account of a conversation she then had with Nehme about her mother’s iPhone (Q&A413-415).

16. [104]

    The accused was returned to the reason for her arrest by DS Lal, who asked her, “You understand what we’re here for”. She said she did (Q&A425). The following questions were then asked, and answers given:

17. [105]

    After that exchange, DS Lal turned to ask about the accused’s knowledge of the involvement of Nehme in a robbery. The following questions and answers were asked and answered:

18. [106]

    The interview was suspended for a period of seven minutes during which time a glass of water was provided to the accused. When it was resumed at 12:52pm, the following questions were asked and answers given:

19. [107]

    The accused then gave an account of having been told by Price on Sunday [8 December 2019] that Nehme, in a telephone conversation with Price when Price was a Rizk’s house during the night of 6-7 December 2019, had told Price about a “job” Nehme had done and a guy going in to rob, and there having been a girl and guy unexpectedly there. The accused said that she had told Price that it was “fucked” that people went uninvited into the homes of others (Q&A464). She later corrected the date of this conversation to Saturday [7 December 2019].

20. [108]

    Numerous questions and answers followed that related to the accused’s movements on Saturday 7 December and Sunday 8 December 2019, and her interactions with Price on those days. At Q&A499 the accused said that, on Sunday evening, she asked Price to telephone Nehme to ask about the accused’s iPhone, and Price placed the call, which was conducted with the phone set to speaker. The accused gave a detailed account of the conversation, in which she took part (Q&A499 – 503). When she was asked if Nehme had said anything about the robbery, she said:

21. [109]

    Having told the officers that she did not agree with people robbing others, she was asked about the first time she learnt about the robbery. The accused said:

22. [110]

    When asked for more information, she said:

23. [111]

    The accused told the officers that the conversation was between Price and Nehme, and was not directed to her (Q&A528). When asked what had been said between Prince and Nehme about a guy with money, the accused responded:

24. [112]

    The accused told the officers she remembered thinking they were discussing “something” like “a job that he was gunna do”(A531, 532). When asked what she meant by “job”, Ms Rizk told the detective “I dunno, like a robbery”. She explained that it was common among drug users and sellers to rob or steal from one another (Q&A540 - 541). She gave as her understanding of a robbery taking property by force (Q&A 545). The accused stressed that her knowledge of such things was not personal, as she had never robbed anyone (Q&A552).

25. [113]

    When asked whether people who robbed others “normally carry weapons”, the accused responded:

26. [114]

    When asked what type of weapon Nehme used, she said she had never seen him with a weapon (Q&A556). She said that he had not discussed a robbery in front of her, and she had not seen him prepared for one.

27. [115]

    When asked if Nehme had taken anything from her house when he left, she said that he had a bag with things in it. The things included “a knife […] a big knife, not one that you can use in the kitchen” (Q&A567 – 568).

28. [116]

    The accused said that she first saw the knife just before Nehme had left her house on Friday night [6 December 2019]. She described the knife as resembling a sword, with a curved blade. It had been left in her laundry by Nehme when he had done his clothes washing there the previous week, so the accused said she got it and gave it to him. She continued:

29. [117]

    She went on to describe the knife and detail how she had taped the knife to Nehme’s torso, referring to the tape she had used and those present at the time. Once she had taped the knife to Nehme’s back, either over or under a singlet he had been wearing, the accused said that Nehme had put a dark navy, black or grey hooded jumper on. She recalled that when he put his jumper on “you could see that he had something under his jumper” (A639). The accused also described the other clothing Nehme had worn. She did not see him wearing any sort of face covering or with gloves.

30. [118]

    The accused insisted that, when Nehme left her home that night, she did not know that he was going to rob someone. She said:

31. [119]

    She understood him to be taking the knife with him because she had told him she didn’t want it in her house.

32. [120]

    After Nehme left, the accused said that she asked Price to call him to ask where the iPhone was. She described the conversation as follows:

33. [121]

    The accused said that she had not known about what Nehme had been involved in until the day before the interview [16 December 2019] when someone told her he had been “locked up” because he had done a “drug rip or a robbery” and “someone died”. She subsequently did an internet search to find further information, using the search terms “fatal stabbing Condell Park” (Q&A697). She said she was very shocked when she found out.

34. [122]

    The accused was asked about her contact with Price since 7 December 2019, and gave an account of her dealings with Price. She provided the police with Price’s number from her phone contact list, a description of her and the car she drove, the location of Price’s unit, and information about her family circumstances.

35. [123]

    The accused was clear in asserting that she had not known that Nehme had left her home intending to do a robbery. She denied having discussed Condell Park with Price or Nehme at any time, or knowing that Nehme was going to do a job at Condell Park on the night of 6 – 7 December 2019:

36. [124]

    Investigating officers played the accused an intercepted telephone call between Nehme and another male [Rahim] in which she and Price were recorded in the background to the call [Ex VD-B, call 27136]. The accused said that, when Nehme had made the call he was sitting in the lounge room of her home. She said that she and Price were having a separate conversation, and not focusing on Nehme. He asked in a general way how far away Condell Park was and she responded.

37. [125]

    A second intercepted call was played to the accused [Ex VD-B, call 28546], being a call between she, Price and Nehme. The accused acknowledged her voice and that the conversation mentioned a stolen phone. She was again cautioned, before giving the officers details about the phone, what she had done with it, and how she had discovered that it was stolen. She consented to police taking the cover for the phone, and described where it could be found.

38. [126]

    Of Nehme’s reference in the recorded conversation to “the job” he had been given the accused said that the call was on speaker phone and both she and Price were participants. She pointed out the reference in the conversation to “your friend” as being a reference by Nehme to her friend Price [a reading which gives the conversation an exculpatory meaning] (Q&A935).

39. [127]

    The accused maintained her insistence that she had known nothing about a robbery prior to it occurring, and nothing about a man being stabbed until 16 December 2019.

40. [128]

    When asked for information about another person, the following exchange was recorded:

41. [129]

    She disputed the interpretation of the calls referred to by DSC Deas, stating:

42. [130]

    When asked about the involvement of Price, the accused said she did not want to provide information, stating:

43. [131]

    She was asked if there was anything else she wanted to tell the officers, she said,

44. [132]

    As the interview drew to a close the accused said:

45. [133]

    The accused was then asked the standard adoption questions, as follows:

46. [134]

    She gave similar responses when asked the same questions by the adopting officer:

47. [135]

    The Crown tendered a number of exhibits and called evidence from each of the interviewing officers.

48. [136]

    DS Lal’s statement, which was commenced on 23 October 2020 and signed on 16 February 2021, was before the Court as Ex VD-A.6. The officer also gave evidence on 7 June 2021, continuing on the second hearing date, 17 June 2021.

49. [137]

    DS Lal said that, on 17 December 2019 he went with a number of other police officers to the accused’s Rockdale home and spoke to the accused, placing her under arrest for “murder and armed robbery at Condell Park”. The accused was given the standard caution and taken by other police to Kogarah Police Station.

50. [138]

    DS Lal deposed that, at the time of affecting the accused’s arrest, he had a number of pieces of evidence and information that had led him to believe that the accused had knowingly assisted Nehme prior to the Condell Park robbery. That information included recordings of intercepted telephone calls involving Nehme, which the officer believed had been made by him from the accused’s house and within her hearing or with her participation.

51. [139]

    On 10 December 2019 Nehme had been interviewed (Ex VD-D), and gave an account of having been with the accused at her house on 7 December 2019, inferentially at the time that the telephone calls were made by him. Nehme had also asserted that he was involved in an intimate relationship with the accused at that time.

52. [140]

    The first call was one recorded at 12:08am on 7 December 2019 [Ex VD-B, call 27101] in which Nehme called a male person offering “five grand, ten grand” if the male could get a car to help with an “easy job”. During the call, the accused can be heard speaking with Price, apparently in close proximity to Nehme. DS Lal believed that the call had been made at a time when Nehme was at the accused’s home and in her presence.

53. [141]

    He also had regard to intercepted telephone conversations in which Nehme made references to something the officer believed meant a knife, which Nehme had had in his possession on leaving the accused’s home. The officer regarded it as likely or at least possible that Nehme had obtained the knife at the accused’s home, and he was aware that a knife had been used to fatally stab Mr Lembryk. He told the Court:

54. [142]

    The officer did not accept that it was not possible to hear what the accused and Ms Price said in the recorded background conversations, noting that he had listened to the calls in 2019.

55. [143]

    He said that, in call 27136 of 12:17am on 7 December 2019, the accused could be both heard in the background of Nehme’s call with Rahim, and also to respond directly to Nehme, who asked her how far Condell Park was from Rockdale. The officer could not agree that it was necessary for Nehme to raise his voice to direct his question about distance to the accused, given the time lapse between him having listened to the calls and the date on which he gave evidence. When the call was played to the officer in re-examination, he said that the accused did not raise his voice to speak to the accused.

56. [144]

    DS Lal did agree that the accused was only mentioned in the summaries of the relevant telephone intercepts, Ex VD-B, a few times, and almost always as in the “Background”. He explained the term “background” as one used by police in this context to mean words said by a person not a party to the call. He also accepted that the words “robbery” and “knife” were not recorded. However, he said that the references to “a job”, making money, and William Street at Condell Park all suggested to him that the subject of the calls made at the accused’s house was an armed robbery at the deceased’s premises.

57. [145]

    The detective referred to another call, 27156 of 12:30am on 7 December 2019, where the accused is recorded as offering to pick up the male Nehme was then speaking to, that being Taufahema:

58. [146]

    His evidence was that, as at 17 December 2019, he understood the accused to have offered her services to pick up the other person involved in the “job” at Condell Park, even though Nehme had not asked her to do so. He was unaware at the time if the accused was able to drive or had a car. He regarded the reference by Nehme in that conversation to having needed to speak to the person “who gave [him] the job” to be a reference to Price and the accused (T91:50 of 17 June 2021).

59. [147]

    In the next two calls, 27163 of 12:32am on 7 December 2019 and call 27283 of 1:25am, DS Lal accepted that the accused was not directly referred to or recorded. He pointed, however, to a reference to “a girl” who had told Nehme “a week ago” about bundles of cash at “his house”. Although the officer deposed that he discovered at a later time that the reference to “a girl” was not a reference to the accused, at the time of the accused’s arrest he believed the girl to be either the accused or Price. He also understood Nehme’s reference to a “thing taped to [him]” as a likely reference to a weapon, potentially obtained from the accused’s home.

60. [148]

    DS Lal referred to a later call, 28546 of 18:34pm on 7 December 2019, in which there was a conversation between the accused and Nehme in which the fatal robbery was discussed, as follows:

61. [149]

    DS Lal said in re-examination that he believed at the time of the accused’s arrest that it was the accused and Price who had given Nehme the information about the Condell Park “job”. He observed (at T103:25, 17 June 2021) with respect to the intercepted telephone conversations that his belief on 17 December 2019 was:

62. [150]

    The detective did not agree with Senior Counsel for the accused that there was no material on the basis of which he could have had a reasonable suspicion of the accused’s involvement in the robbery and murder. He said in cross-examination that, when he arrested the accused, it was his intention to charge her with an accessory offence (at T75:09):

63. [151]

    DS Lal deposed that, when the accused asked him towards the end of the interview if she would be charged, he was considering his position as to whether there would be other charges as well as an accessory charge. He said that his “main purpose” in arresting the accused:

64. [152]

    When asked about the accused’s indication that she did not want to answer questions “about that” (see [102] above) DS Lal said that the video recording was suspended but the audio recording in fact continued. He rejected the possibility that he or DSC Deas told the accused that it was in her interests to be interviewed, or that if she had done nothing wrong she had nothing to worry about. He deposed that anything said would have been sound recorded [and thus transcribed]. He had no recollection of anything happening beyond a glass of water being obtained for the accused.

65. [153]

    As to the length of the accused’s detention, DS Lal deposed that the accused was arrested at 9:30am on 17 December 2019 and taken to Kogarah Police Station. She was interviewed between 11:35am and 2:55pm, after which the officer immediately commenced the charging process, preparing charge sheets and other required documentation. The detective told the Court (at T63:32, 7 June 2021) that:

66. [154]

    The statement made by DSC Deas between 23 March and 12 May 2020 was in evidence, and the officer was also called to give evidence. He accompanied DS Lal to Rockdale on 17 December 2019 and was present when the accused was arrested and later interviewed.

67. [155]

    At the point at which the interview with the accused was briefly suspended DSC Deas said he might have had some conversation with her about getting her a glass of water, but nothing about the offences was said. He did not regard it as possible that someone has said something to the accused along the lines of it being in her interests to give an interview.

68. [156]

    The officer deposed that, when the accused was arrested, it was the intention of the investigating officers to charge her, and to charge her regardless of whether she took part in an interview. Only if she had given some account that made it impossible for her to have been involved in the murder would the accused not have been charged.

69. [157]

    Senior Counsel for the accused focused principally on the lawfulness or otherwise of the arrest of the accused, and the question of whether her right to silence was ignored or overborne during the interview. The question of the length of the accused’s detention was relied upon in written submissions, but not in oral submissions, given after DS Lal had completed his evidence, which included his evidence that the charging process had been initiated within the statutory period.

70. [158]

    It was submitted that the Court should exclude the interview with the accused from evidence in the exercise of its powers under s 138 of the Evidence Act 1995 (NSW) on the following grounds:

    1. (1)

       The police did not have reasonable cause to arrest the accused. The Court was referred to Hyder v The Commonwealth [2012] NSWCA 336 at para [15].

    2. (2)

       The record of interview was obtained improperly in that it continued after the accused attempted to exercise her right to silence. Acknowledging that the accused had been cautioned during her interview Mr Stratton emphasised Q&A426 – 436 as demonstrating that she had sought to exercise her right to silence and been ignored, with the interview proceeding after the short suspension. The Court was referred to Regina v Taleb [2019] NSWSC 241.

    3. (3)

       The detention of Ms Rizk was unlawful because she was detained after the expiration of the relevant period without being charged.

71. [159]

    As to the lawfulness of the arrest, Mr Stratton submitted that DS Lal’s evidence left open the possibility that, when the accused was arrested, it was not with the certain intention of charging her. It is argued that an arrest for the purpose of asking questions to see if it would be proper or prudent to charge someone is an arrest for an improper purpose and is unlawful, pursuant to State of NSW v Robinson (2019) 266 CLR 619; [2019] HCA 46 at paras [63], [71], [110], and [116].

72. [160]

    The accused contends that the material available to police as at 17 December 2019 to provide a basis for a reasonable suspicion that she was an accessory before the fact to murder consisted of:

    1. (1)

       the telephone intercept material;

    2. (2)

       the crime scene;

    3. (3)

       the injuries to the victim; and

    4. (4)

       the “fact that the accused was party to the telephone conversations”.

73. [161]

    It was submitted that there was nothing about the crime scene or the injuries sustained by the deceased which could implicate the accused, and the telephone intercept material, including the fact that the accused was a party to the phone calls – that amounting to different aspects of the same thing – did not add anything of substance. The accused could be heard speaking in four calls, principally as speaking in the background, without being a participant to the conversation. In those conversations where she contributed – the calls of 12:17 am and 12:30am on 7 December 2019 – her participation, if accepted to have occurred, was peripheral, and did not relate to a weapon, a robbery, or any other relevant matter.

74. [162]

    In the call at 6.34 pm on 7 December 2019 the significant conversation was between Price and Nehme, with the accused’s contribution restricted to an argument about a telephone. Further, the call took place after the murder had occurred, and after the time any material assistance had been provided.

75. [163]

    It was contended that, for the arrest of the accused to be lawful, the arresting police officer had to have reasonable cause to believe that she was committing or had committed an offence: s. 99(1)(a) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). The question of whether the officer had reasonable grounds is to be determined according to objective criteria: Hyder v Commonwealth of Australia [2012] NSWCA 336 at [15]. Mr Stratton submitted that there was no material available that at any time before the murder, the accused knew that Nehme was going to engage in a robbery with a knife. The Court was referred to Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29.

76. [164]

    The unlawfulness of the arrest was compounded by the continuation of the interview after such time as the accused had indicated that she did not wish to take part in it any further. Further, Detective Lal asked the accused a series of hypothetical questions about the use of weapons by drug dealers, and then proceeded on the false premise that she had admitted that Nehme been armed on 7 December 2019.

77. [165]

    The Court was urged to use its power to exclude the interview in its entirety, having regard to the unlawful arrest, or to exclude those admissions made after such time as the accused indicated she did not wish to answer questions, pursuant to ss. 90 and 138 of the Evidence Act: The Queen v Ireland (1970) 126 CLR 321 at 331-3.

78. [166]

    The Crown submitted that the arrest of the accused was lawful as the totality of the information available to arresting police as at the date of arrest, when taken together, was adequate to provide a factual basis for a reasonable suspicion. The phone calls, when regarded as a whole, and bearing in mind that the police understood all but that on the evening of 7 December 2019 to have been made from the accused’s home and in her presence, clearly pointed to her knowledge of Nehme’s crime prior to its commission. Whilst the accused did not herself refer to the Condell Park offence during the call between her, Nehme, and Price that occurred at 18:34 on 7 December 2019, Nehme referred to it in clear terms in conversation with the accused; she plainly knew what he was speaking of, pointing to her earlier knowledge of the planned robbery.

79. [167]

    The Crown submitted that the interview with the accused was admissible and there was no proper basis upon which to exclude it from evidence. The accused was cautioned repeatedly and indicated that she understood her rights. When she said during the interview that she did not want to answer any further questions, the interview was suspended. On its resumption, the accused was again cautioned and, having confirmed that there had been no discussion of the subject of the interview during the period of the suspension, she thereafter willingly answered questions. When the adopting officer spoke to her immediately prior to the termination of the interview, she made no complaint and raised no concerns.

80. [168]

    DS Lal’s evidence as to the period of detention was determinative, and established that the requirements set out at s 115 of LEPRA had been complied with.

81. [169]

    The Court was referred to a number of decisions, including R v Clarke (1997) 97 A Crim R 414, Plevac v R (1995) 84 A Crim R 570 and R v Taylor (Court of Criminal Appeal (NSW), 18 April 1995, unrep).

82. [170]

    The accused argues that the Court should exclude the evidence of her interview with police because her arrest was illegal, her questioning was improper, and she was illegally detained beyond the period permitted by statute.

83. [171]

    The last of those complaints is the most readily determined, because the evidence adduced by the Crown, which was not seriously challenged by the accused, is in my opinion determinative. The evidence of DS Lal was that the accused was arrested at 9.30am on 17 December 2019. She was conveyed to Kogarah Police Station, interviewed, and the charging process then commenced, at 2:55pm. Section 99 of LEPRA provides for the arrest of a person without warrant. Section 99(4) provides:

84. [172]

    Part 9 of the Act regulates investigation and questioning of persons who are under arrest. Division 2 of Part 9 provides for the powers of investigation and questioning with respect to persons under arrest. Section 115 is in the following terms:

85. [173]

    There are a number of “carve outs” in determining the length of an “investigation period” including, relevantly, the time it takes to transport an arrested person to a police station, and the time taken for a refreshment break. Section 116(1) provides for the determination of a “time that is reasonable” as follows:

86. [174]

    Section 116(2) provides a lengthy but not exhaustive list of matters that may be taken into account in determining what is a reasonable time.

87. [175]

    Although there was no evidence as to the time taken to convey the accused from Rockdale to Kogarah Police Station, allowing for some period for the journey (which is excluded from the calculation of the investigation period), the accused was detained for a period of about five hours before the investigation period came to an end, and the charging process commenced. In all of the circumstances of this matter, including that the investigation related to a complex and very serious matter, I do not conclude that a period of about five hours is unreasonable. It is less than the period provided by s 115(2) as the maximum time before which a detention warrant is required to further detain an arrested person.

88. [176]

    This issue can be set aside.

89. [177]

    The question of the lawfulness of the arrest of the accused is more complex.

90. [178]

    Section 99 of LEPRA is the relevant provision governing arrests without warrant. It is in these terms:

91. [179]

    The question is whether DS Lal suspected on reasonable grounds that the accused had committed an offence, specifically, accessory before the fact to murder. Whilst the officer believed that he had reasonable grounds for the accused’s arrest, the question is one that should be determined objectively. It was held by the High Court in George v Rockett [1990] 170 CLR 104; [1990] HCA 26, at 108, that:

92. [180]

    The relevant state of mind for the purposes of s 99 of LEPRA is suspicion. Suspicion is a state of mind that is less certain than belief. At 115-116 of George v Rockett it was said that:

93. [181]

    The Court referred with approval to the formulation of Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; [1966] HCA 21, at 303, that “suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’”.

94. [182]

    What constitutes reasonable grounds for suspecting a person to have committed an offence must be judged against what was known or reasonably capable of being known at the relevant time: Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48, at [40]. It is not relevant that some of those things known are later found to be wrong: O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286; Hyder v Commonwealth at [15].

95. [183]

    Here, DS Lal had listened to intercepted telephone conversations which he understood to have been made by Nehme, who was, Nehme had told police, in a relationship with the accused. He understood the calls to have been made from the accused’s house, at a time when the accused was in sufficient proximity to Nehme to have been recorded by the telephone intercept device as she spoke in the background, and in circumstances where she had both answered a relevant question directed to her by Nehme, who did not raise his voice to ask it, and volunteered herself to assist Nehme in collecting Taufahema without being directly asked to do so. To volunteer that service it was reasonably open to conclude that the accused must have been able to hear at least Nehme’s side of the conversation.

96. [184]

    DS Lal also had access to the final call recorded on the evening of 7 December 2019 wherein Nehme spoke to the accused about something he was trying “to sort out for you guys”, a comment that could reasonably have been understood to be a reference in the context to Price and the accused. The something to which Nehme referred was “the job” that was “shit” because the “guy” wasn’t “a little guy” or a “little nerd”. Taken in the context of the earlier calls, where Nehme had referred to the job at Condell Park that a girl had given him, it was reasonably open to conclude that Nehme was speaking to the accused about the Condell Park robbery which had gone badly wrong because Mr Lembryk was not an easy target. Although the accused did not herself refer to the “job”, she showed no surprise during that conversation, and no sign of being bewildered or confused by what Nehme had said. Her response, “This is all got nothing to do with my mum’s phone”, could be reasonably understood as connoting comprehension of what “this” was.

97. [185]

    DS Lal understood from his own experience that the term “job” was a coded word used by those in the illicit drug world to mean a “rip”, or an armed robbery of a drug seller or buyer.

98. [186]

    DS Lal also understood that two girls had attended the deceased’s home, and that a girl had “given” the “job” to Nehme that led to the Condell Park home invasion. It was reasonably open to him in my opinion to suspect that the accused was one of the girls, and had, with Price, been instrumental in passing on information about the cash to be found at the deceased’s home.

99. [187]

    Although some of the information that DS Lal took into account in suspecting the accused of involvement in the Condell Park offence was later found to be wrong, such as the true identities of the two girls who visited the deceased’s home, he did not have that information at the time.

100. [188]

     Suspicion is to be clearly distinguished from proof. The officer was not required to have evidence sufficient to prove the offence he suspected the accused had committed; he had only to harbour a suspicion reasonably open on factual information, whether that was information admissible in a court as evidence or not.

101. [189]

     On the basis of all of the factual pieces of information taken together, in my view there was a reasonable basis to suspect that the accused had assisted Nehme prior to the robbery, at least by providing premises to him in which he could plan the crime, and by offering to transport a member of the enterprise, knowing that he intended to carry out a “job”, or armed robbery, of a person.

102. [190]

     I do not accept the submission that the accused was arrested for the purpose of interviewing her, without the police having any real intention of charging her. Both DS Lal and DSC Deas deposed that their intention was to charge the accused as an accessory when she was arrested. That each conceded that, had she said something incontrovertibly exculpatory, she would not have been charged, is no more than common sense. As DSC Deas told the Court:

103. [191]

     The clear evidence of both officers was that, save for the accused giving some information that made it impossible for her to have committed an offence, she was going to be charged following arrest.

104. [192]

     Having reached those conclusions, I further conclude that the accused’s arrest was not unlawful.

105. [193]

     It is clear from the interview with the accused that was conducted following her arrest that, at least for a significant period of time, she answered questions freely and voluntarily, understanding what her rights were. By the time the accused was asked directly about the Condell Park robbery she had been cautioned on a number of occasions, indicating on each occasion that she understood what she had been told. There is nothing in her presentation to that point that suggests that she did not in fact understand, or that she was vulnerable to coercion or pressure or was coerced or pressured. When asked directly about the robbery the accused appeared uncomfortable; she put her hands over her face and asked if the recording device could be “turned off for a bit”. DS Lal complied with that request.

106. [194]

     There is no evidence that, when the interview was resumed some minutes later, the accused had been subject to any improper conduct. The accused herself agreed that such discussion as had occurred was not related to the subject of the interview; all that had occurred, she acknowledged, was that she had been given a glass of water. The accused, who was holding the water at the time, did not appear to be distressed or anxious, or in any way different to the way she had presented before the interview was suspended.

107. [195]

     DS Lal was at some pains to ascertain that the accused understood on resuming the interview that she did not have to answer any further questions. The accused’s acknowledgement of that was given in an open and ready manner; nothing about her demeanour suggests that she had been overborne in some way by the police. She presented as co-operative and willing to assist. As an example, she readily gave DS Lal permission to go to her home and seize relevant items, such as the purple cover of the stolen telephone, describing both the object and its whereabouts to assist the officers.

108. [196]

     Her ready answers to the questions asked of her from the resumption of the interview also point to her understanding of her right not to do so, and her capacity to make arguments in support of what she told the police, notably, her insistence that she had not known that Nehme was intending to carry out an armed robbery when she gave him the knife and assisted him in securing it to his body, or when he left her home. For example, at Q&A 832 and Q&A993 the accused was forthright in contradicting the basis of questions put to her about her knowledge of what Nehme had spoken of on the telephone at her home on the night of 6 -7 December 2019. At Q&A996 the accused readily asserted and maintained her right not to answer direct questions about Price, explaining that she was her friend.

109. [197]

     Further, nothing said by the accused could have made her liable for an accessory before the fact offence standing alone. In that sense, the accused’s answers to questions put to her protected her position; she consistently denied any knowledge of Nehme’s plans, in a forthright and determined way. Even her account of conduct that many might regard as suspicious or at least odd – her act in strapping a large knife to Nehme’s body – the accused explained in a way consistent with innocence. Taking the interview alone there is nothing that the accused said in it which could have led to her being convicted of an offence of being an accessory before the murder of Mr Lembryk. She was unaware until well into the interview of the other [rather thin] circumstantial evidence the police had and, in any event, she provided firm exculpatory explanations for those matters raised with her.

110. [198]

     Whilst the accused asked for the interview to stop “for a bit” at one point, there is no evidence to suggest that thereafter she was generally unwilling to answer questions. Where she did not wish to answer, she said so (such as at Q&A996).

111. [199]

     Having viewed the recording I am not persuaded that there was anything in the conduct of the police officers that was improper, or anything in the conduct of the accused that pointed to some impropriety. I do not accept that her right to silence was traversed. I would not exclude the interview in its entirety, either as unfair to the accused pursuant to s 90 of the Evidence Act, or in the exercise of the Court’s discretion under Part 3.1 of the Act.

112. [200]

     I accept Mr Stratton’s submission, however, as to Q&A555 – 564. At that portion of the interview DS Lal did extrapolate from a hypothetical situation to a material one involving Nehme in a way that did not follow from what the accused said. Those questions were unfair to the accused, and should be excluded from the interview: s 90 Evidence Act. On the same basis, I would exclude Q&A 427-Q&A 435, since they do no more than record the accused’s wish not to answer questions at that point.

113. [201]

     The orders of the Court are as follows:

     1. (1)

        The Notice of Motion filed by the accused Rahim on 24 May 2021 is dismissed;

     2. (2)

        The Notice of Motion filed by the accused Rizk on 25 May 2021 is dismissed, except with respect to Questions and Answers 427 – 435 and 555 – 564 of the interview of 17 December 2019. Those questions and answers are excluded from the evidence to be adduced by the Crown.

     3. (3)

        The matters are referred to the Criminal Law List Judge in Chambers, for further order.