R v Nehme, Price, Rahim, Taufahema and Rizk (No 5) [2023] NSWSC 933

R v Nehme, Price, Rahim, Taufahema and Rizk (No 5) [2023] NSWSC 933

The recorded interview was admissible because Mr Nehme did not establish that it was obtained illegally or improperly. The police had allowed a reasonable time and made numerous efforts to contact a lawyer before commencing the interview, so no breach of s 123 of LEPRA was established. Although police persistently questioned Mr Nehme after indications that he did not wish to speak, the judge found that he was intelligent, engaged, capable of exercising his right to silence, and chose to participate for reasons he considered in his interests; the questioning was not impermissibly persistent in all the circumstances.

Jurisdiction
Australia
Judgment Date
24 February 2023
Procedural Posture
Murder Trial / Pre Trial Ruling on Admissibility of Recorded Interview
Outcome
Application to exclude the recorded interview refused; recorded interview of Mr Nehme to be admitted into evidence.
Legal Topics
['murder Trial' 'recorded Interview of Arrested Suspect' 'section 138 Discretion' 'lepra Rights of Arrested Persons' 'right to Silence' 'voir Dire']
['criminal Law' 'evidence' 'criminal Procedure'] ['murder Trial' 'recorded Interview of Arrested Suspect' 'section 138 Discretion' 'lepra Rights of Arrested Persons' 'right to Silence' 'voir Dire']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Murder Trial / Pre Trial Ruling on Admissibility of Recorded Interview

Legal Issues

  1. 1 ['Whether the recorded interview between Mr Nehme and investigating police was obtained illegally or improperly within the meaning of s 138 of the Evidence Act 1995 (NSW).' 'Whether police breached s 123 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) by failing to defer the interview for a reasonable period to permit Mr Nehme to contact a lawyer.' "Whether police improperly or unlawfully impugned Mr Nehme's right to silence by commencing and continuing to question him after he indicated that he did not wish to answer questions." 'If illegality or impropriety were established, whether the evidence should nevertheless be admitted under s 138 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The recorded interview was admissible because Mr Nehme did not establish that it was obtained illegally or improperly. The police had allowed a reasonable time and made numerous efforts to contact a lawyer before commencing the interview, so no breach of s 123 of LEPRA was established. Although police persistently questioned Mr Nehme after indications that he did not wish to speak, the judge found that he was intelligent, engaged, capable of exercising his right to silence, and chose to participate for reasons he considered in his interests; the questioning was not impermissibly persistent in all the circumstances.

Court Disposition

Application to exclude the recorded interview refused; recorded interview of Mr Nehme to be admitted into evidence.

Orders

  • ['Recorded interview of Mr Nehme to be admitted into evidence.']