R v Price; R v Rahim; R v Rizk; R v Taufahema (No 7)

1. [1]

   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.

2. [2]

   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.

3. [3]

   I now set out the reasons for my decision.

4. [4]

   The content of items 260, 263 and 293 will be set out later in the judgment.

General evidentiary principles

1. [5]

   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.

2. [6]

   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]

3. [7]

   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):

4. [8]

   As stated by Whealy J in Regina (Cth) v Baladjam [No 19] [2008] NSWSC 1441 at [70]:

5. [9]

   Also relevant to the consideration of this issue is s 135 of the Evidence Act 1995 (NSW) which reads:

Consideration

1. [10]

   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.

2. [11]

   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.

3. [12]

   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.

4. [13]

   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.

5. [14]

   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:

6. [15]

   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.

7. [16]

   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.

8. [17]

   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.

9. [18]

   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.

10. [19]

    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.

11. [20]

    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:

12. [21]

    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.

13. [22]

    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.

14. [23]

    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.

15. [24]

    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.