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.