R v Fakhreddine

[2024] NSWSC 320

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

1. 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.

2. 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.

3. On 28 November 2023, the jury was discharged as a result of being unable to agree on a verdict. On that same day, the trial judge made an interim non-publication order over the fact or details of the discharge of the jury, any evidence given by the accused and any evidence of any other witness in that trial that referred to the evidence of the accused.

4. The retrial is fixed to commence before me and a jury on 2 September 2024, slightly over five months from now.

5. By amended notice of motion filed 7 February 2024, the applicant seeks an order that any evidence given by him at the 2023 trial not be published until after the conclusion of the retrial or until an order is made ruling his evidence, or part of his evidence, admissible in the retrial. He submits that this order should be made under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”) on the basis that it is necessary to preserve the integrity of the Court’s process, including a fair trial for the accused.

6. The Crown opposes the application on the basis that “necessity” has not been established, but if the Court takes the view that necessity has been established, any order should have an exception to allow investigating police to pursue lines of inquiry arising from the applicant’s evidence at the last trial, including publication or dissemination of parts of it to certain sections of the public to assist with ongoing investigation.

7. For the reasons that follow I have decided to make the order sought, with the exception requested by the Crown, to remain in effect until verdict, or order of the Court, or 30 November 2024, whichever event is the first to occur.

The evidence to be considered on the application

8. An affidavit of the applicant’s solicitor, Michael Ayache, sworn 7 February 2024 was read. It appended media reporting of which he was aware which included an interview and report on Channel 9 News, an extract from an article on 7 News, and a Sydney Morning Herald article, all of which focussed on the Crown and defence opening addresses on the first day of the trial. Those reports included the name of the accused, some personal details about him, and that the Crown case against him was that he had attacked the deceased after a sexual encounter and bludgeoned him numerous times to the head with a 2.7kg statuette. It was also reported that his fingerprints were found on that bloodied statuette, that his semen was detected in the mouth of the deceased, and his DNA traced to cigarette butts found on a coffee table inside the deceased’s unit.

9. Mr Ayache’s affidavit also annexed a transcript of the applicant’s evidence given at the 2023 trial. It is extensive and includes an account - given for the first time in the witness box - that while he was present at the deceased’s unit, he saw three people break in and kill the deceased.

10. Whilst no affidavit material was tendered by the Crown, a bundle of material was provided which included the Crown Case statement, the transcript of the opening address for the defence, two news articles that reported aspects of the bail hearing in October 2021, including reference to Hamill J’s remarks that there was a strong Crown case, and three news items reporting on the opening day of the trial, including the same Sydney Morning Herald article included in Mr Ayache’s affidavit.

11. It was common ground that no media outlet seems to have reported any of the applicant’s evidence, nor the fact that he gave evidence at the trial.

Submissions of the parties

(i) Applicant’s submissions

12. The applicant accepted that he bears the onus to demonstrate that the order is necessary and that “necessary” does not mean convenient, sensible or reasonable. However he submitted that the word “necessary” should not be given a narrow construction and will depend on the factual circumstances of the case: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 (“Fairfax Digital”).

13. It was submitted that the applicant has been sensationally labelled the “Valentine’s Day murderer” after being granted Supreme Court bail in 2021. Despite there being no contemporaneous reporting of the applicant’s evidence during the first trial, there was media coverage before and at the start of the first trial and it is anticipated that the second trial will attract further media attention.

14. Counsel for the applicant argued that as the Crown bears the onus of proof regardless of what happened in the first trial, the accused never has to give evidence. At this stage the evidence given by the applicant during the first trial has no status for the second trial, and has not yet been admitted into evidence in the second trial. There is a risk that if his evidence from the first trial is published, it will undermine his right not to give evidence in the second trial.

15. The second trial is due to start on 2 September 2024 and a jury will be empanelled. If the evidence is published in the interim five months, it may well come to the notice of members of the public who will form the jury pool and potential jurors will be irretrievably prejudiced by any publication of the evidence.

16. Significantly, the applicant submitted, any publication of the evidence would have to be a summary of the evidence and will not reflect the full evidence in the context of the demeanour with which he gave it. In other words, potential jurors will not have the advantage of a trial context where issues are defined and challenged in cross-examination and re-examination.

17. There is a concern that by the time the potential jurors come to hear evidence in the second trial, they might have formed views about the case or about the accused. The standard directions will not suffice to prevent prejudice and specific directions will do no more than draw attention to the very matter which is sought to be discounted. It was submitted that as stated by Hidden J in Regina v A, Regina v S, Regina v M [2005] NSWSC 478 at [14]:

“[14] True it is the juries in the subsequent trials could be directed to disregard any publicity they had read and to decide each case only on the evidence related to it. The view I have reached is not intended as a reflection upon potential jurors, or as an insinuation that they are exceptionally fragile and prone to prejudice: see the judgment of the Chief Justice at [103]. Notwithstanding the confidence that trial judges ought to have in the respect of juries for their directions, the courts have long recognised there are situations of prejudice which strain that confidence to the limit, and which need to be remedied by some means other than simply directions.”

18. Ultimately it was submitted that the order sought is for a limited period of time, are necessary to protect the integrity of the second trial, and that without such orders the publication of the evidence of the applicant will undermine his right to a fair trial because it will be impossible to secure a jury which would not be influenced by the media reporting of the applicant’s evidence in the first trial.

(ii) Crown submissions

19. The Crown submitted that the comments of Leeming JA in DRJ v Commissioner of Victims Rights [2020] NSWCA 136 (“DRJ”) at [25] and [30] provided a framework within which to properly consider the primacy of the principle of open justice:

“[25] In HT v The Queen [2019] HCA 40; 93 ALJR 1307 at [82], Gordon J summarised the position:

“Superior courts have an inherent power to suppress the publication or dissemination of material that is on the court record. Any exercise of the discretion to make a suppression or non-publication order starts from the premise of open justice. The court’s discretion is not unbounded. As Lord Diplock said in Attorney-General v Leveller Magazine Ltd, ‘[a]part from statutory exceptions ... where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule [of open justice], the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice’. Thus, except for doing what is reasonably necessary for the purposes of securing the administration of justice, there is no inherent power to prohibit a person from publishing or otherwise disclosing the evidence in a proceeding. Any such prohibition must do no more than is reasonably necessary to achieve the due administration of justice, based on the material before the court.” [footnotes omitted].”   

20. Leeming JA considered and rejected a submission that s 6 of the Act need not be considered if one of the conditions in s 8(1) are satisfied:

“[30] The applicants submitted that “The principle of open justice under s 6 does not need to be considered if one of the grounds in s 8 is established”. That submission cannot be accepted.

(1) First, s 6 imposes an obligation upon the Court, in unambiguous language, reinforcing the position at common law. There is nothing in the language of s 8 to entitle a court to disregard that obligation.

(2)   Secondly, if there were any doubt about it, it is resolved by s 8(1)(e), which proceeds on the basis that the public interest in open justice is not disregarded, but rather, needs to be substantially outweighed if that paragraph is to be satisfied; see Misrachi at [11].

(3)   Thirdly, s 12(2) requires the duration of an order to be limited “for no longer than is reasonably necessary to achieve the purpose for which it is made”. That limitation reflects the ongoing importance of safeguarding the public interest in open justice.”

21. The Crown acknowledged that the effect of the evidence of the accused at the first trial was that he had admitted to being at the apartment, engaging in a sexual act with the deceased and that he provided an explanation as to his fingerprints in blood on the murder weapon. The Crown also acknowledged that the media was not present when the accused gave evidence and there was no reporting of his evidence at that time. While the interim non-publication order has been in place since, there has been no application for a takedown order in respect of the material that is in the public domain.   

22. The Crown agreed that the accused must of course receive a fair trial and that any potential jury pool should not be contaminated by inadmissible or otherwise inflammatory material.

23. It was further submitted that on retrial, the Crown case remained generally the same, relying on the forensic evidence at the crime scene to prove that the applicant was responsible for the murder. There may be some adjustment to evidence that will be tendered, as well as additional evidence that the Crown may seek to tender having heard the evidence of the accused at the last trial. Further investigations are being undertaken arising from the accused’s evidence.

24. As the applicant has already waived his right to silence by electing to give evidence in the first trial, no matter what occurs in the second trial, the Crown would still be entitled to cross-examine on the version given in the last trial under ss 103, 104 and 106 of the Evidence Act 1995 (NSW).

25. The publication of any evidence the applicant gave in open court on oath in his own defence does not undermine his right for a fair trial, or his decision not to give or call evidence in any new trial. A properly instructed jury will be directed before the commencement of the trial that they must put out of their minds anything that they have read or seen in the media in the past and act only on the evidence led in the trial.

26. The applicant’s submission that standard directions would not suffice, discounts the clear line of authority that juries are expected to follow all directions of law they are given.

27. Finally, the Crown submitted that the applicant had not established any non-publication order in respect of the applicant’s evidence was “necessary”; only that it might be sensible or prudent to make such an order.

Consideration

28. The Act provides, relevantly, as follows:

Part 2 Suppression and non-publication orders

6 Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

7 Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of—

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds—

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

…

11 Where an order applies

(1) A suppression order or non-publication order applies only to the disclosure or publication of information in a place where the order applies, as specified in the order.

(2) A suppression order or non-publication order is not limited to applying in New South Wales and can be made to apply anywhere in the Commonwealth.

(3) However, an order is not to be made to apply outside New South Wales unless the court is satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made.

12 Duration of orders

(1) A suppression order or non-publication order operates for the period decided by the court and specified in the order.

(2) In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

(3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

29. The key questions for determination here are whether:

• the order is necessary to prevent prejudice to the proper administration of justice;

• it is appropriate to provide for the exception sought by the Crown for the ongoing investigation.

30. Salient principles were restated by the Court in Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69 at [25], [26] and [27]:

“[25] In Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403, the Court made clear that s 6 of the Act records and confirms that in deciding whether to make, inter alia, a non-publication order the Court must take into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”. At [27], Bathurst CJ and McColl JA noted that this provision “reinforces the legislative intention that [orders under the Act] should only be made in exceptional circumstances”.

[26] Subsections 8(1)(a) to (e) specify a number of grounds upon which such an order can be made. All of them require that the order sought be “necessary” to protect an identified interest. The exceptional nature of the power and the high threshold imposed by “necessity” may be seen from the fact that it is not enough that it appears to the Court that the proposed order is convenient, reasonable or sensible: Rinehart at [31]; D1 v P1 [2012] NSWCA 314 at [48].

[27] Another important matter in the present case is whether the orders sought will be effective or lack utility. In D1 v P1, Bathurst CJ emphasised the need to consider the utility of making the order. His Honour noted at [52] that there had been publicity about the incident in that case which gave rise to the litigation, and further discussion of the matter would seem likely irrespective of the order made.”

31. Application of principle is of course dependent on context. The observations of Basten JA in Fairfax Digital at [46] have redolence here:

“[46] The meaning of "necessary" depends on the context in which it is used. In s 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word "necessary" is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In paragraph (a), the purpose of the order will be "to prevent prejudice to the proper administration of justice". That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered "necessary" in particular circumstances.”

32. Consideration of whether to make the order cannot be divorced from its utility and the particular circumstances of its application. A man with an uncommon surname has been charged with murder in violent and particularly recognisable circumstances. He is facing retrial in five months’ time.

33. The administration of justice sometimes involves a situation where a jury does not agree and there is a retrial. That is nobody’s fault. There is utility in making the confined order sought as it covers only material not already published.

34. A foundational concern is the right to a fair trial. Another is the presumption of innocence. Quite apart from the fact that the applicant has waived his right to silence by giving evidence in the first trial, he is still entitled to the presumption of innocence, and has a right to a fair trial, described by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344; [2004] NSWCA 324 at [18] as “one of the most fundamental aspects of the system of justice in Australia”.

35. The material so far published in the media does not include anything said by the applicant in his first trial or the fact that he gave evidence at all.

36. It is realistically inevitable that the content of at least some of the applicant’s evidence at the first trial will be placed before the jury in the second trial. However there are five months until that will happen and in the meantime an interesting and potentially unforgettable story could be published using his evidence. Any such story cannot, realistically, comprehensively engage with or reproduce all of the aspects of the evidence given by the applicant and its presentation at the last trial, and it would be difficult to present it in a way that would avoid prejudice to the upcoming trial. If the contents are published in a prejudicial article, there may well be a (valid) application to delay the retrial.

37. The order is for a short period only, probably only five to six months, given that the order will be reconsidered, (and likely immediately revoked), upon the evidence in question being sought to be used in the retrial. However that will be at a time when the contents of that evidence can be duly managed and presented, with the jury likely already empanelled. The jury will be directed as to the way in which they should approach that material. That is very different to reading or hearing about a media story based on an interpretation, version or summary of the applicant’s evidence in the first trial in an unsupervised, undirected environment.

38. I accept that directions will be made requiring jurors to put out of their minds any media reports about the case they are to decide. We must assume the jury will obey those directions. I acknowledge the fact that where there have been media reports, and even extensive media coverage, this does not invariably result in a delayed trial, successful application for judge alone trial or a concern that a jury or juror cannot bring an impartial mind to bear on the issues.

39. Here however, with such peculiar and particular facts, and the inherent difficulty in fairly presenting what amounted to three days of questioning, not previously reported on, the non-publication order sought has real work to do and in my view is necessary to prevent prejudice to the proper administration of justice.

Orders

40. I make the following orders:

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.

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Decision last updated: 25 February 2025