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

[2023] NSWSC 1658

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Nehme; R v Price; R v Rahim; R v Rizk; R v Taufahema (No 3) [2023] NSWSC 1658

Hearing dates:

24 October 2023

Date of orders:

24 October 2023

Decision date:

24 October 2023

Jurisdiction:

Common Law

Before:

McNaughton J

Decision:

On behalf of the accused Nehme, the Court makes the following order:

(1) The application for a direction relating to the element of intention for joint criminal enterprise and extended joint criminal enterprise is refused

Catchwords:

CRIME – murder – joint criminal enterprise – extended joint criminal enterprise – application in relation to the content of directions relating to the element of intention for joint criminal enterprise and extended joint criminal enterprise – Mitchell v The King [2023] HCA 5 not authoritatively stating anything new in relation to joint criminal enterprise or extended joint criminal enterprise outside the context of constructive murder – application rejected

Legislation Cited:

Criminal Law Consolidation Act 1935 (SA), s 12A

Cases Cited:

McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37

Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30

Mitchell v The King [2023] HCA 5

Shepherdv The Queen (1990) 170 CLR 573; [1990] HCA 56

Category:

Procedural rulings

Parties:

Rex (Crown)
Joseph Nehme (Accused)
Lisa Anne Price (Accused)
Bilal Rahim (Accused)
Sherene Rizk (Accused)
Viliami Bui Taufahema (Accused)

Representation:

Counsel:
K Ratcliffe (Crown)
D Dalton SC / T Weller-Wong (Joseph Nehme)
T Quilter (Lisa Anne Price)
B Neild SC (Bilal Rahim)
N Carroll (Sherene Rizk)
A Evers (Viliami Bui Taufahema)

Solicitors:
Solicitor for Public Prosecutions (Crown)
JB Corban Lawyers (Joseph Nehme)
Sydney Side Lawyers (Lisa Anne Price)
Australian Criminal & Family Lawyers (Bilal Rahim)
Malouf Criminal Lawyers (Sherene Rizk)
Criminal Law Group (Viliami Bui Taufahema)

File Number(s):

2019/00388186, 2019/00399270, 2019/00388028, 2019/00397014, 2019/00388190

Publication restriction:

No publication until the conclusion of the trial against Joseph Nehme

EX TEMPORE JUDGMENT (REVISED)

1. On 24 October 2023, I rejected a pre-trial application made on behalf of the accused Joseph Nehme by Mr Dalton of Senior Counsel, in relation to the content of directions relating to the element of intention for joint criminal enterprise and extended joint criminal enterprise.

2. It was submitted that if the Crown failed to prove beyond reasonable doubt that the accused Nehme stabbed the deceased, then the directions for intention, regarding his complicity for murder, required more than the Crown was currently proposing pursuant to the two pathways of joint criminal enterprise and extended joint criminal enterprise.

3. Mr Dalton SC first indicated that he would be arguing, ultimately, that,

“it must be proved beyond reasonable doubt that the accused knew that a weapon was to be used in the offence such that he was aware of the possibility that the victim might be stabbed with the relevant intention by the stabber of causing death and/or grievous bodily harm, an act that might in fact cause the victims’ death”.

4. Mr Dalton SC went on to clarify that it was accepted that the specific terms of such a direction regarding knowledge of a weapon being involved before the offence was committed should be the subject of a Shepherd direction (Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56) which could properly be argued at the end of the evidence.

5. However, Mr Dalton SC submitted that it was appropriate, prior to empanelment, to settle the direction regarding the element of intention relevant to both pathways. He contended that the jury should be directed “that the agreement included the possible commission of an intentional act of violence of the same general nature that caused the death”.

6. This contention is said to arise from the High Court decision in Mitchell v The King [2023] HCA 5 (“Mitchell”), principally at [105]-[108] per Gordon, Edelman and Steward JJ; but also at [50]-[61], [86] and [94] per Gordon, Edelman and Steward JJ, [13]-[19] per Kiefel CJ, and [48] per Gageler, Gleeson and Jagot JJ. More particularly, it was argued that what was set out at [108] (ostensibly dealing with common law murder based upon s 12A of the Criminal Law Consolidation Act 1935 (SA) – a constructive murder provision) which includes the passage “that the agreement included the possible commission of an intentional act of violence of the same general nature that caused the death” is equally applicable to the common law offence of joint criminal enterprise murder and extended joint criminal enterprise murder, even though the High Court does not say so explicitly.

7. In my view, the contention made by Mr Dalton SC cannot be sustained. A fair reading of the principles set out at [108] of Mitchell makes it clear that the passage in question only applies to common law murder based upon s 12A of the Criminal Law Consolidation Act and not to murder under the pathways of common law murder based on joint criminal enterprise or extended joint criminal enterprise.

8. In my view, the High Court in Mitchell was not stating authoritatively anything new in relation to joint criminal enterprise or extended joint criminal enterprise outside the context of constructive murder. The law in relation to joint criminal enterprise and extended joint criminal enterprise remains as set out in McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 and Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30.

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Amendments

07 May 2024 - Representation amended.