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

Senior Counsel, on behalf of the accused Bilal Rahim, seeks a ruling excluding evidence of a plea of guilty to a charge pursuant to s 97 of the Crimes Act 1900 (NSW) that was entered before Button J when the indictment was in a different form to the current indictment. The current indictment contains an offence contrary to s 97 (Count 2). The previous indictment did not contain such an offence. Rather, on the previous occasion, the plea of guilty to the s 97 charge was entered in relation to the murder charge (Count 1) which was then being put on the basis of constructive murder with the foundational offence being s 98 of the Crimes Act.

The trial before Button J was aborted following the handing down of the High Court judgment in Mitchell v The King [2023] HCA 5: see R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202.

The murder charge is now being put on the basis of joint criminal enterprise and extended joint criminal enterprise.

It is contended that the plea entered on the previous occasion was entered on a basis which did not include any acknowledgment that the agreement of assault with intent to rob in company involved any knowledge of any breaking and entering the deceased’s premises. It is submitted that the way the Crown now puts its case involves the potential for a jury to conclude that the agreement to assault with intent to rob in company (and thus the plea of guilty to that count, entered in different circumstances) does involve such knowledge, and that evidence of the plea could be construed as acknowledging that.

In support of its argument the applicant points to paragraph 7 of the current Crown Case Statement which is in the following terms:

In considering this issue I note that it is a multi-accused trial. There are four counts on the indictment and the matter already has real complexity. It is apparent that the basis of the plea that was entered earlier this year is now contested because of a perceived change in the Crown case. That perceived change may in fact be simply making explicit what was previously implicit. Nevertheless, it is clear from the opening address that was given on the accused Rahim's behalf in the trial before Button J, that his understanding was relevant to the basis upon which the plea was entered.

That opening address on behalf of the accused Rahim before Button J (Tcpt, 1 March 2023, p 86-87) included the following:

The accused Rahim pleaded not guilty to two further counts on the indictment involving breaking and entering, and has maintained those pleas of not guilty in the trial before me.

In my view, looking first at s 90 of the Evidence Act 1995 (NSW) there is a risk of unfairness if the evidence of the plea of guilty was adduced in this trial. That is because, in my view, the jury would be invited to deal with, essentially, a sub-issue within what is already a very complex trial. The jury would need to turn its mind to the previous basis for the entry of the plea in a situation where that would add to and further complicate the material the jury needs to consider and it would, in my view, result in unfairness to the accused Rahim.

Next turning briefly to s 137 of the Evidence Act. I note that while there is clear probative value in the evidence of this admission, the basis for that admission is now, as I have indicated, contested and would produce complex submissions and require complex directions to the jury. As such, the probative value of the evidence of the plea would be diminished . There is a danger of unfair prejudice which outweighs its probative value. I note again this is especially the case in the context of a multi-accused trial with multiple counts on the indictment. It would be an unnecessary distraction for the jury in its task.

In all of the circumstances I refuse to admit the evidence of the plea of guilty to the s 97 Crimes Act offence made by the accused Rahim in the trial before Button J.