R v Nehme (No 3) [2024] NSWSC 515

R v Nehme (No 3) [2024] NSWSC 515

The impugned passage is relevant under s 55 of the Evidence Act because, if accepted by the jury, it could rationally affect the probability of the accused's involvement in the stabbing. The recorded audio is admissible under s 56. Pursuant to s 137, its high probative value—supported by the context and Detective Sergeant Colefax's familiarity with the accused's voice—is not outweighed by the risk of unfair prejudice, given the absence of transcript, limiting effects of priming, and directions to the jury to rely on what they hear. Thus, the audio (including the impugned passage) is admitted.

Jurisdiction
Australia
Judgment Date
06 May 2024
Procedural Posture
Criminal / Preliminary Evidentiary Ruling During Jury Trial
Outcome
Orders made admitting the impugned audio passage; Crown permitted to adduce full audio and address the jury as to the words contended for in closing.
Legal Topics
['admissibility of Evidence' 'joint Criminal Enterprise' 'intercepted Communications' 'probative Value Vs Prejudicial Effect']
['criminal Law' 'evidence'] ['admissibility of Evidence' 'joint Criminal Enterprise' 'intercepted Communications' 'probative Value Vs Prejudicial Effect']

Case Brief

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Procedural Posture

Criminal / Preliminary Evidentiary Ruling During Jury Trial

Legal Issues

  1. 1 ['Whether the impugned audio passage is relevant and admissible under Evidence Act 1995 (NSW) ss 55, 56' 'Whether the probative value of the impugned passage is outweighed by the danger of unfair prejudice under s 137 of the Evidence Act']

Ratio Decidendi

The impugned passage is relevant under s 55 of the Evidence Act because, if accepted by the jury, it could rationally affect the probability of the accused's involvement in the stabbing. The recorded audio is admissible under s 56. Pursuant to s 137, its high probative value—supported by the context and Detective Sergeant Colefax's familiarity with the accused's voice—is not outweighed by the risk of unfair prejudice, given the absence of transcript, limiting effects of priming, and directions to the jury to rely on what they hear. Thus, the audio (including the impugned passage) is admitted.

Court Disposition

Orders made admitting the impugned audio passage; Crown permitted to adduce full audio and address the jury as to the words contended for in closing.

Orders

  • ['The impugned passage is relevant pursuant to s 55 of the Evidence Act 1995 (NSW), and therefore admissible pursuant to s 56 unless excluded by another provision of the Act.' 'Pursuant to s 137 of the Evidence Act 1995 (NSW), the probative value is not outweighed by the danger of unfair prejudice to the accused.'...