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R v Fakhreddine

R v Fakhreddine

Case [2024] NSWSC 320 27 March 2024

Open Justice

Fair Trial

Non-Publication Orders

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Fakhreddine [2024] NSWSC 320
Hearing dates: 18 March 2024
Date of orders: 27 March 2024
Decision date: 27 March 2024
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Non-publication order granted in the form set out in par [40].

Catchwords:
NON-PUBLICATION ORDERS – previous trial – interim non-publication order applied for and made immediately after jury discharged – open justice – need to ensure fair trial – retrial to take place slightly over five months from now – media interest – particularly memorable and unusual facts of alleged murder – application granted

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69
DRJ v Commissioner of Victims Rights [2020] NSWCA 136
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344; [2004] NSWCA 324
Regina v A, Regina v S, Regina v M [2005] NSWSC 478

Category: Procedural rulings
Parties: Rex (Crown)
Naji Fakhreddine (Accused)
Representation:
Counsel:
S Traynor (Crown)
J Layani Ellis (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
One Group Legal (Accused)

File Number(s): 2024/00058931
Publication restriction:
(1) Pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) the publication of the following is prohibited by each of the parties and any news media organisation or any other person until verdict, or further order of the Court, or 30 November 2024, whichever is earlier:

• Any evidence given by the accused in the trial commencing on 17 October 2023,

subject to the following exception:

• Any publication or dissemination made by NSW Police to a section of the public of the accused’s evidence or a part or parts
of that evidence, or a summary of that evidence, to assist in or further the investigation.

(2) This order applies throughout the Commonwealth of Australia.
(3) Order 1 shall not apply to the publication of any of the materials referred to in that order published to the relatives of the deceased for the purposes of communicating or advising of the outcome of the trial that commenced on 17 October 2023, or details or prospects concerning any retrial.

JUDGMENT

The applicant is charged that he murdered Bernd Lehmann on 12 February 2008. The applicant was arrested in 2021 after certain inquiries led to a DNA match via another family member, placing the applicant at the scene of the murder in a very direct and intimate way.
A trial before Harrison CJ at CL and a jury of 15 commenced on 17 October 2023. On 8, 10 and 13 November, days 14, 15 and 16 of the trial, the applicant gave evidence and was cross-examined.
On 28 November 2023, the jury was discharged as a result of being unable to agree on a verdict. On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fakhreddine

Details

AGLC: R v Fakhreddine [2024] NSWSC 320
Case: [2024] NSWSC 320
Decision Date: 27 March 2024

CaseChat Overview and Summary

The respondents applied for an extension of an interim non-publication order in respect of their previous trial, which was discharged after the jury was unable to reach a verdict. The interim order had been made immediately after the jury was discharged, to protect the right of the respondents to a fair trial in the event of a retrial. The respondents sought the extension of the non-publication order due to the open justice principle and the need to ensure a fair trial, given the highly publicised nature of the case and the significant media interest. The respondents' retrial was scheduled to take place slightly over five months from the time of the application.

The central legal issue before the court was whether to extend the interim non-publication order beyond the period prescribed by the law, given the unusual and memorable facts of the alleged murder. The court had to weigh the public interest in open justice against the need to ensure a fair trial for the respondents. It was noted that the interim non-publication order had been made immediately after the jury was discharged, and the respondents' retrial was scheduled to take place slightly over five months from the time of the application. The court had to consider the highly publicised nature of the case and the significant media interest.

The court granted the application for an extension of the non-publication order, noting that the case involved particularly memorable and unusual facts of the alleged murder. The court acknowledged the open justice principle and the need to ensure a fair trial for the respondents. The court found that the extension of the non-publication order was necessary to protect the respondents' right to a fair trial, given the significant media interest and the highly publicised nature of the case. The court considered the balance between the public interest in open justice and the need to ensure a fair trial for the respondents, and concluded that the extension of the non-publication order was necessary in this case.

The court made an order extending the interim non-publication order in relation to the respondents' previous trial, to ensure a fair trial for the respondents in their retrial. The order was made until the commencement of the respondents' retrial, which was scheduled to take place slightly over five months from the time of the application. The court noted that the extension of the non-publication order was necessary to protect the respondents' right to a fair trial, given the significant media interest and the highly publicised nature of the case.

Orders