A video recording of an online conversation involving two former Sydney nurses in which one allegedly made threats of violence against Israelis must be excluded from the cases against the pair, a judge has ruled.
Ahmed Rashad Nadir and Sarah Abu Lebdeh were matched with Israeli content creator Max Veifer on the cam chat app Chatruketka, which connects strangers around the world, in February last year while working at Bankstown Hospital.
Both former nurses have pleaded not guilty to using a carriage service to menace, harass or offend, while Ms Abu Lebdeh has denied an additional charge of threatening violence to a group.
Ahead of their trial in late August, defence lawyers argued a video of the interaction, which Mr Veifer recorded and later published to his more than 100,000 social media followers, should be excluded from the case.
Earlier this month, they argued it was improperly obtained and breached NSW laws which prohibit the recording of private conversations without consent.
Judge Michael McHugh noted the Evidence Act states that evidence obtained improperly or in contravention of an Australian law is not to be admitted unless the “desirability” of doing so outweighed the “undesirability”.
In handing down his decision, he said he also considered whether the participants on the chat service were in a “private conversation” for the purposes of NSW law.
“Ultimately, I have come to the firm view that all the video evidence must be excluded from each of the trials of the applicants,”
the judge said.
Ms Abu Lebdeh is alleged to have threatened to use force or violence against Israelis.
The content creator appeared via AVL from Israel at the hearing in the NSW District Court earlier this month.
Former nurse ‘grateful’ for ruling
Ms Abu Lebdeh’s lawyer Rayan Kadadi outside court welcomed the ruling.
“I don’t think there was any evidence to charge my client, who ultimately lost her job and has gone through severe hardship,” she said.
Ms Abu Lebdeh said she was “grateful for the court’s decision”.
“I’m thankful for everyone that supported me, my friends and my family and my lawyer,”
she said.
Judge McHugh said the cases had already received “a great deal of media exposure” and the video published by Mr Veifer — whose real name is Max Ilinsky — was given “much wider publicity by legacy media, particularly in Australia”.
“The alleged utterances of the applicants during the chat room interactions are, on their face and at the very least likely highly disturbing to right-minded people everywhere,” he said in his decision.
The judge noted there were a range of views on what Mr Ilinsky referred to as “the war” and antisemitism generally, which “can be vigorously asserted and defended by people of good [and bad] faith”.
“Of course, whether the elements of either offence are made out against either applicant and to the high criminal standard is an entirely different set of questions and are for the trier of fact — which for indictable Commonwealth offences must be a jury,” Judge McHugh said.
The majority of the judge’s reasons for the decision cannot be published due to a court order.
