Court overturns decision to exclude video in trial of ex-Sydney nurses

Video evidence previously ruled inadmissible will be allowed in the trial of two former Sydney nurses accused of making menacing comments about Israelis, following a Court of Appeal judgement.Two former Bankstown Hospital nurses, Sarah Abu Lebdeh and Ahmad Rashad Nadir, have pleaded not guilty to using a carriage service to menace and harass, following a conversation with an Israeli influencer on the cam chat app Chatruletka in February last year.Ms Abu Lebdeh has pleaded not guilty to an additional charge of threatening violence to a group, after allegedly making threats to Israeli patients during the chat.Ms Abu Lebdeh (wearing all brown) has pleaded not guilty to an additional charge of threatening violence to a group. (ABC News: Simon Amery)Defence lawyers for the pair had argued the video chat itself should be excluded from the case because it was improperly obtained and breached privacy laws. Last month, the District Court of NSW ruled in their favour.But prosecutors took the matter to the Court of Appeal, which on Friday overturned that decision, meaning the unedited video is no longer inadmissible evidence.Reasons for the judgement have been handed to the parties to consider what parts should be subject to suppression or non-publication orders ahead of the trial.They cannot be published until further order of the court.Video's country of origin disputedDuring a day's worth of legal argument in the Court of Appeal last week, barristers for the Crown and the former nurses argued about which country the video was technically recorded in.Barrister for the Crown, Paul Holdenson KC, argued the recording was created by influencer Max Veifer, whose real name is Max Ilinsky, in Israel, and therefore it did not break any NSW laws."Mr Ilinsky was sitting in Israel at the time of the conversation," he told the court."His computer was with him in Israel."Lawyers for the former nurses wanted the judge's decision to exclude the evidence to remain in place.Mr Nadir pleaded not guilty to using a carriage service to menace and harass. (ABC News: Jamie McKinnell)Defence barrister Peter Lange SC argued the offence was partly committed in NSW because the former nurses' computer had a microphone to record the conversation."What was used was the microphone in the room at the hospital … in order to capture the sound," he said."The conversation may also have been in Israel … but it is also in New South Wales."Mr Holdenson told the hearing the Crown case would be significantly impacted if it could not use the video, because the jury would not have a proper understanding of the context of the conversation."The jury can only do that if the jury can see and hear what was said … and the tone and manner in which is it was said, together with any hand gestures and expressions," he said."Without the video … the crown case is indeed very, very much weakened."The former nurses, who were sacked after the incident, are due to stand trial at the end of August.