After a district court judge’s decision to exclude from evidence a video of two Sydney nurses allegedly threatening to kill Israeli patients has been overturned by the Supreme Court ahead of their trial, reports The Australian’s Bimini Plesser.
Sarah Abu Lebdeh and Ahmad Rashad Nadir made global headlines last year after Israeli influencer Max Ilinsky recorded them at Bankstown Hospital allegedly threatening violence against Israeli patients.
In the video, Mr Nadir allegedly suggested he had sent Israeli patients to “hell”, while Ms Abu Lebdeh allegedly claimed she would “kill” Israelis rather than treat them.
Last month, NSW District Court judge Michael McHugh said the viral clip was inadmissible as it was unlawful for Mr Ilinsky to have recorded and shared the private conversation. The Commonwealth Director of Public Prosecutions lodged an appeal with the NSW Court of Criminal Appeal. The matter was heard by Supreme Court judges Anthony Payne and James Emmett, and Chief Judge at Common Law Natalie Adams, on July 24.
A commonwealth prosecutor told the judges the video should be reintroduced into evidence because without it, a jury could not reach a fair and fully informed decision. “In the absence of the video, the crown case is indeed very, very much weakened,” he said. The prosecutor told the court that when Mr Ilinsky recorded the conversation, he was in Israel, where it is legal to do so.
Mr Nadir’s barrister, Greg James KC, said regardless of where Mr Ilinsky was at the time, the conversation he recorded occurred, at least in part, in NSW and should be subject to local law. He said the video could not be allowed to be used as evidence as it was recorded “clandestinely”, or at least without permission. [Ed: In our view, that argument has no merit. The nurses were willing participants in the video.]
Last week, Justices Payne, Emmett and Adams overturned Judge McHugh’s decision to rule the video out of evidence. With the video reintroduced into evidence, the prosecution will be able to use both the footage and Mr Ilinsky’s testimony in the case against the nurses when their trial begins on August 31. Most of Judge McHugh’s original judgment about the video was suppressed and only limited reasons for his decision were released publicly last month. The reason for the suppression was not aired in open court.
The former Bankstown Hospital nurses have both pleaded not guilty to using a carriage service to menace, harass or offend, and Ms Abu Lebdeh has pleaded not guilty to an additional charge of threatening violence to a group. They have been stood down from their jobs by NSW Health and issued a two-year ban from working with NDIS participants.
Press Play: Evidence Belongs in Court, Not Behind Judicial Curtains
Two former Bankstown Hospital nurses face trial over a video in which they allegedly threatened violence against Israeli patients. A District Court judge excluded the footage as unlawfully recorded. Last week the NSW Supreme Court overturned that ruling and ordered the video back into evidence. The Crown will now be able to play it to the jury. Good.
The principle at stake is larger than this case.
When a serious allegation is made, the tribunal of fact needs the best available evidence of what was actually said and done. Distasteful content does not become irrelevant because it is ugly. Sexual material does not become inadmissible because it is private. Deadly threats do not become unusable because they are shocking. If the prosecution is permitted to put a claim before a jury, the defence is entitled to every piece of evidence that can fairly test or refute that claim.
Suppression of relevant material creates an imbalance. It allows one narrative to stand unchallenged by the raw record. Courts already possess powers to control how sensitive evidence is handled — closed courts, suppression orders on identity, warnings to juries. What they should not do is keep the jury from seeing the primary evidence itself when that evidence goes to the heart of the charge.
The same rule must apply in both directions. If a complainant alleges non-consent, the defence is entitled to any contemporaneous recording, message or medical record that may undermine that account. If the Crown relies on a threat, the defence is entitled to the full context of the conversation. Fairness is not a one-way street. Once the state is allowed to put an allegation before a jury, both sides must have access to the material that can prove or disprove it.
Evidence is not neutral.
Evidence is not neutral indeed; it is often messy, embarrassing or confronting. That is precisely why it matters. A justice system that filters out the distasteful in the name of propriety risks filtering out the truth. Press play.
Press play and let the jury decide.