R v Nehme (No 4) [2024] NSWSC 516

Supreme Court New South Wales

Medium Neutral Citation: R v Nehme (No 4) [2024] NSWSC 516 Hearing dates: 19 March 2024, 20 March 2024 Date of orders: 20 March 2024 Decision date: 06 May 2024 Jurisdiction: Common Law Before: McNaughton J Decision: The Court makes the following order: (1) Paragraph 30 of the statement of Robyn Bradley, dated 7 December 2019 (other than the last two sentences) is admissible Catchwords: CRIME – evidence – previous representation of drug supply – where mother gave police statement – where mother is an unavailable witness – whether evidence admissible for its non-hearsay purpose per Evidence Act, s 60 – whether evidence admissible as an exception to hearsay per Evidence Act, s 65 Legislation Cited: Evidence Act 1995 (NSW), pt 2, ss 55, 60, 65, 136 Cases Cited: Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 Texts Cited: Nil Category: Procedural rulings Parties: Rex (Crown) Joseph Nehme (Accused) Representation: Counsel: K Ratcliffe (Crown) D Dalton SC /T Weller-Wong (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) JB Corban Lawyers (Accused) File Number(s): 2019/388186 Publication restriction: No publication until the conclusion of the trial against Joseph Nehme

JUDGMENT

Introduction 1. On 20 March 2024, on the application of the accused, which was opposed by the Crown, I ruled that paragraph 30 of the statement of Robyn Bradley, dated 7 December 2019, (other than the last two sentences which were not part of the application) was admissible.1 2. Ms Bradley is the mother of the deceased, Luke Lembryk. Ms Bradley tragically died from cancer only a few months after the death of her son. Ms Bradley is clearly therefore an "unavailable" witness (Evidence Act 1995 (NSW), Dictionary pt 2 s 4(1)(a)). 3. The defence also sought to adduce evidence of the deceased's convictions in 2014 for two offences of drug supply and one offence of dealing with proceeds of crime, together with the Statement of Facts relating to those three offences. The Crown also opposed the admission of this evidence. I ruled that certain details of the offences could be led, but not the Statement of Facts. 4. Following that ruling, the Crown indicated that they would lead the material which had been ruled admissible through the Officer in Charge. 5. I now set out the reasons for my decision. 6. The deceased was stabbed in the early hours of 7 December 2019 at his home, which he shared with his mother. The stabbing occurred in the course of a planned robbery of cash and/or drugs from the deceased. Ms Bradley was nearby when the deceased was stabbed, but in another room. The deceased died shortly after he was stabbed. 7. Later that day, following the death of her son, Ms Bradley made a police statement. Most of that statement has already been led in evidence, before the jury, by agreement, through the Officer in Charge, Detective Sergeant Colefax, on 11 March 2024. A number of paragraphs were not read, because they were still the subject of discussion between the parties. Of these unread passages, only paragraph 30 was ultimately sought to be adduced in evidence by the defence. 8. The position of both parties in relation to paragraph 30 appeared to shift somewhat before their final position was settled. I did not take the shifting positions into account in my determination. 9. The Crown's final position was that paragraph 30 was not admissible as it was inadmissible hearsay, and that the 2014 matters were not relevant. The defence contended the material was relevant and admissible under either ss 60 or 65 of the Evidence Act.