R v Fakhreddine

[2023] NSWSC 1112

Supreme Court

New South Wales

Medium Neutral Citation:	R v Fakhreddine [2023] NSWSC 1112
Hearing dates:	12 September 2023
Date of orders:	14 September 2023
Decision date:	14 September 2023
Jurisdiction:	Common Law - Criminal
Before:	Harrison J
Decision:	Application to vacate the trial refused
Catchwords:	CRIMINAL TRIAL – application to vacate hearing – where accused maintains that he will be unable to obtain a fair trial without retaining expert forensic specialists – where additional need to raise funds for that purpose and to pay lawyers – where all issues have been on the cards for years – no satisfactory explanation for failure to obtain evidence – application refused
Legislation Cited:	Legal Aid Commission Act 1979 (NSW) s 35
Category:	Procedural rulings
Parties:	Rex (Crown) Naji Fakhreddine (Accused)
Representation:	Counsel: S Traynor (Crown) P Lange (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) One Group Legal (Accused)
File Number(s):	2021/75628
Publication restriction:	Nil

jUDGMENT

1. HIS HONOUR: The trial in this matter is scheduled to commence on Tuesday 3 October 2023. By his notice of motion dated 11 September 2023, Mr Fakhreddine seeks orders that the trial be vacated. He relies upon the affidavit of Mohammad Chahine sworn on the same date.

2. Mr Chahine’s affidavit is relevantly as follows:

“3. Mr Fakhreddine was arraigned on 14 April 2023, at which time these proceedings were listed for trial to commence on 3 October 2023. The trial has an estimated length of three (3) weeks. At the time of the arraignment, Mr Fakhreddine instructed me to seek a trial date in 2024 as he was relying on financial support from his sons and his sons has indicated the need of 9 - 12 months to raise funding for the trial. I sought a trial date in early 2024 however, Justice Wilson listed the matter for trial to commence on 3 October 2023.

4. Pretrial arguments in these proceedings were heard before Justice Harrison at the Supreme Court in Sydney between 20 and 21 July 2023. Mr Lange of Counsel appeared for Mr Fakhreddine at this time.

5. On 21 July 2023, Mr Lange indicated to the Court that Mr Fakhreddine would be seeking to engage experts who would give evidence in the defence case at the trial proper in relation to:

(a) blood spatter;

(b) DNA; and

(c) fingerprints

6. Mr Fakhreddine is currently employed and receiving an income; however, I am instructed that his savings as the [sic] presently stand are not sufficient to cover the costs associated with paying the cost of experts at this time. Mr Fakhreddine's children have been assisting him financially with his proceedings and have provided ongoing assurances regarding financial support, however, the assistance provided to date is not sufficient to pay the costs of the required experts.

7. Mr Lange has advised our office that expert reports were crucial to the defence of Mr Fakhreddine. That advice was relayed to Mr Fakhreddine and his family following receipt of the brief of evidence in this matter in 2002 [sic] and then again in April 2023, June 2023, July 2023, and August 2023. Despite assurances by Mr Fakhreddine's son that funding would be forthcoming, funds necessary to engage the required experts have not been received.

8. On 21 July 2023, Mr Lange again reiterated the importance of expert reports in Mr Fakhreddine's case. This advice was again relayed to Mr Fakhreddine and his family who again assured our office that they would be able to fund the relevant experts.

9. On 24 July 2023, I asked our office manager, Nora Haddad, to make enquiries with relevant and appropriately qualified experts for the purposes of obtaining reports for the trial proceedings. I asked Ms Haddad to make enquiries in relation to availability only, as it is not our practice to engage any third party without having funds secured in trust. It was our intention to brief these experts as soon as funding was available and briefs to experts were prepared some time ago for this purpose.

10. At the time Ms Haddad made her enquiries in, she informed me that as of July 2023, the following experts were available to be engaged for a trial commencing in October 2023:

(a) Independent Forensic services (DNA and blood spatter).

(b) Forensic Document Services (fingerprints).

(c) Lyonswood Investigations & Forensics (fingerprints).

11. On 24 August 2023, Independent Forensic Services advised our office that they would be able to provide our office with report in relation to DNA and potentially blood spatter by early October 2023, however, on 1 September 2023, they advised that they would not be able to comment on phenotype testing provided by the University of Canberra as it was outside their area of expertise. To date, we have not been able to find an expert in relation to comment of phenotype DNA testing. Independent Forensic Services quoted $11,440.00 for the purposes of providing a report in relation to DNA evidence only (this does not include giving evidence at the trial proper).

12. Independent Forensic services also advised that whilst they are generally positioned to comment on blood spatter, the evidence in relation to the fingerprint and blood should be considered by a fingerprint expert. Independent Forensic Services further confirmed that any report would be available four (4) weeks after briefing.

13. As things presently stand, I estimate that the costs associated with engaging experts to report on matters, as well as attending Court to give evidence, is likely to be about $50,000.00.

14. On 5 September 2023, Mr Lange of counsel wrote to our office indicating that he would be returning the brief in Mr Fakhreddine's matter as no experts had yet been retained, thereby affecting his capacity to advance a cogent defence on behalf of Mr Fakhreddine and making reference to rule 105(g) of the Legal Profession Uniform Conduct (Barristers) Rules 2015.

15. I have spoken to both Mr Fakhreddine and his family in relation to whether they will be able to financially cover the costs of the three (3) expert reports above. I have been assured that the costs of the required reports will be covered, however, they have indicated that they require further time to secure funding for same. I have enquired with both Mr Fakhreddine and his family as to how long they will require to secure funding for same. I am instructed that they will require at least a further six (6) months to raise the estimated $50,000.00.

16. Prior to the matter reaching this point (where this application became necessary), I did turn my mind to having Mr Fakhreddine make an application for legal aid however, I did not pursue making such an application for the following reasons:

(1) Counsel briefed was retained on a private basis;

(2) Mr Fakhreddine is in gainful employment and earning an income; and

(3) Mr Fakhreddine's sons were, and continue, to make assurances that funding would be forthcoming.

17. The relevance of Mr Fakhreddine earning an income and Mr Fakhreddine's children providing assurances that funding would be forthcoming is that it is my understanding that Mr Fakhreddine would be precluded from qualifying for Legal Aid Policy relating to eligibility tests at 1.4.2.2 and 1.4.4.2 and section 35 of the Legal Aid Commission Act 1979.

18. Given that the success of any defence is dependent on the prosecution expert evidence being properly tested, thereby giving rise to the necessity for Mr Fakhreddine to engage like experts, I ask the Court to make the orders sought in the Notice of Motion of 11 September 2023.”

3. In response to that affidavit, the Crown relies upon the affidavit of Amarande Chauvet affirmed today. That affidavit is relevantly as follows:

“Original facts and certification

2. Mr Fakhreddine was charged for the offence of murder on 17 March 2021. At the time of his arrest, the New South Wales Police Fact Sheet outlined the DNA and Fingerprint evidence, which remains the same evidence presently relied on in the Crown Case. The facts outlined that a familial search identified 'Individual A' as the son or sibling of Hassan Fakhreddine. It also outlined the taking of a cigarette butt discarded by the accused to enable further DNA testing. Relevantly it said:

‘A fingerprint was found in blood on the statuette arm. On 17/3/2021 the print was identified as belonging to the accused left middle finger. A palm print in blood located on the base of the statuette was also found to belong to the accused left palm.

The accused DNA profile was found on eight cigarette butts located in the lounge room of LEHMANN's unit. The same male DNA profile was identified from the oropharyngeal (mouth swab) taken from LEHMANN during his post-mortem examination. This swab was identified as semen as opposed to skin cell DNA.’

3. On 5 May 2021, the Officer of the Director of Public Prosecutions received the first service of the EAGP brief of evidence. Within this material was an EAGP expert opinion of 13 pages of Tony Scott Bush, fingerprint expert, dated 22 April 2021. The opinion identified Naji Fakhreddine as having deposited V1, a left middle finger print on the back right arm of the ‘white colour figurine without head’ (the statue), V2, a left palm print on the lower back/baser of the ‘white colour figurine without head’.

4. On 9 June 2021, a complete DNA analysis certificate confirming the EAGP summary results was served on defence.

5. On 22 July 2021, a charge certificate was filed with the Local Court, certifying the charge of murder. The parties agreed to a case conference date of 7 September 2021.

6. On 28 July 2021, the accused's legal team filed two subpoenas returnable on 10 August 2021. The first on New South Wales Police, seeking (amongst other material) evidence relating to the discarded cigarette butt retrieved from the accused. The second on FASS, requesting a copy of the analyst's file in its entirety.

7. On 4 August 2021, the DNA familial search report was served on defence.

Issues about DNA and fingerprints identified at bail application 2021

8. On 5 August 2021, the accused appeared before the Supreme Court for a release application. On this day the officer in charge (at the time) Margaret Ashburn was cross examined by Mr Lange on behalf of the accused. The cross examination centred around expert evidence, including mentions about the fingerprint on the statue being ‘in blood’.

Progress through Local Court after certification

9. On 10 August 2021, access was granted to the subpoena material produced in relation to both subpoenas issued by the accused.

10. On 3 September 2021, after an email from Jessica Chan, the accused's representatives indicated they would not participate in a case conference on 7 September 2021 due to outstanding evidence.

11. The matter returned to court on 16 September 2021 for case conference mention. On this date the Crown filed a section 82 application to call Marcello Araldi to give evidence during the committal proceedings. The Court ordered reply submission by 30 September 2021. The matter was adjourned to 7 October 2021.

12. On 5 October 2021, the accused's representatives indicated they would seek a further 6 weeks adjournment to allow for brief material to be served. The Crown position was that the brief was EAGP compliant and asked what material was requested. No response was received.

13. On 7 October 2021, the Local Court set a section 82 hearing for 3 February 2022 with a readiness mention on 25 November 2021.

14. From February 2022, several delays occurred due to the COVID-19 outbreak. The section 82 hearing was adjourned, and subsequently held on 2 September 2022. The matter was otherwise adjourned to 27 October 2022, with a case conference date on 6 October 2022.

15. The case conference did not take place due to Mr Chahine being unavailable. Several enquiries were made by this office to reschedule, which did not result in a case conference. The matter returned before the court on 27 October 2022 where it was further adjourned to 17 November 2022 with a case conference date set for 10 November 2022.

16. During the adjournment period, several attempts were made by this office to organise the case conference. The accused's representatives informed us that a subpoena would be issued to New South Wales Police seeking further material, including correspondence with expert witnesses. The subpoena was issued on 2 November 2022 and returnable on 25 November 2022.

17. On 17 November 2022, the matter was before the Local Court where a further adjournment was sought by defence. This was opposed. The Court agreed the matter should proceed and adjourned it for 1 week to 24 November 2022 for Mr Chahine to attend Court.

18. On 24 November 2022, the Court granted a further adjournment to 9 March 2023. On this date the accused was committed for trial.

Orders made on arraignment and pre-trial hearing

19. On 14 April 2023 Mr Fakhreddine was arraigned in the Supreme Court. The trial date was listed for 3 October 2023. Mr Lange appeared for the accused and confirmed that the Crown would be put to strict proof on the aspect of identification. It was noted that there was forensic evidence that would be subject to challenge and that any expert reports to be relied on by the accused to be served was appropriate. An order was made by Justice Wilson for such service of defence expert report by 3 July 2023.

20. On 26 June 2023, I sent an email to Mr Chahine, copying Ms Vanderbeek from One Group Legal and Ms Jessica Tohi, which called for the defence s 143 notice and noted the court order for expert reports to be served by 3 July 2023. I received no response.

21. On 5 July 2023 I sent a further email to Mr Chahine, copying Ms Vanderbeek and Ms Jessica Tohi seeking an update on the s 143 notice and the service of any expert reports to be relied on. I received no response.

22. On 20 July 2023, the matter was before the Supreme Court for pre-trial argument. On this day inquiries were made regarding the expectation of expert reports. Mr Fakhreddine's representatives indicated that expert reports were still being sought. On 21 July 2023, a s143 notice was received. At item (h) it states, ‘Mr Fakhreddine may call expert witnesses at trial in relation to DNA, pathology and fingerprints.’ During the hearing, we were informally advised that there were issues with funding.

23. Since this time, other than an email from Ms Vanderbeek seeking a copy of two items from the brief, I have not heard from Mr Fakhreddine's legal representatives, despite several emails. On Friday 1 September I called and spoke to Jessica Tohi. I was informed I would receive a response to our inquiry regarding an issue about the availability of Dr Bruce, FASS DNA expert who is due to fly to the United States shortly after the commencement of the trial and whether the defence were content for Ms Wedervang, Senior analyst at FASS to give the same evidence about the DNA results. I asked whether there remained issues with funding which was confirmed.

24. It has always been the Crown case that the expert evidence, both related to fingerprint and DNA evidence, was the critical evidence to support Mr Fakhreddine's responsibility for the murder and that has not changed since the accused was charged.

Expert evidence

25. The brief of evidence contains the following expert reports (relevant to the three areas identified by defence as being in dispute):

(a) Fingerprints:

• Report of Senior Sergeant (as he was at the time) Tony Scott Bush, dated 17 February 2008.

• Report of Senior Sergeant (as he was at the time) Tony Scott Bush, dated 22 April 2021.

• Report of Michael Whyte; regarding questions around fingerprints, dated 10 August 2021.

• Report of Michael Whyte, second report, dated 4 September 2022.

(b) DNA:

• Expert certificate of analysis by Lisa-Ann Wedervang, dated 6 February 2009

• Expert certificate of analysis by Lisa-Ann Wedervang, dated 11 December 2009.

• Report of Dr David Bruce, first report, regarding familial search, dated 14 September 2020.

• Report of Dr David Bruce, second report, regarding DNA analysis, dated 27 May 2021.

• Report of Dr David Bruce, third report, regarding persistence of DNA in oral cavity, dated 16 December 2022.

• Report of Dr David Bruce, fourth report, regarding meaning of Sperm Fraction, dated 8 March 2023.

(c) Blood Splatter:

• Report of D/Sgt Sarah Southall regarding bloodstain pattern interpretation, dated 13 May 2021.

• Report of D/Snr/Sgt Gregory Moon, regarding bloodstain pattern analysis, dated 23 December 2022.

26. The Crown has informed the accused's representatives that it does not seek to call Senior Sergeant Tony Scott Bush and Detective Sergeant Sarah Southall to give evidence.

27. I am informed by expert Michael Whyte that he has never been approached by the accused's representatives for a conference.

28. I am informed by Dr David Bruce that he has never been approached by the accused's representatives for a conference.”

4. The proceedings were before me for pre-trial argument on several issues on 21 July 2023. The following exchange should be noted:

“TRAYNOR: Your Honour, I'm terribly sorry, I keep popping up. Just while we're here, I just wanted to raise an issue. We have received today a s 143 notice on behalf of the defence.

HIS HONOUR: You did receive it?

TRAYNOR: I have received it this morning, yes, and there are just some matters in there that if your Honour is the trial judge just to be clear as to whether or not there might need to be any timetable set because there was a timetable set for expert evidence on behalf of the defence to be served by the 3rd of July and the notice says that Mr Fakhreddine may call expert evidence in relation to DNA, pathology and fingerprints.

HIS HONOUR: That leaves you in a cleft stick.

TRAYNOR: The trial is not until the 3rd of October, but certainly I would be looking for some form of timetable that if there is to be this expert evidence, and I appreciate it might be conditional upon lots of different things, but certainly the Crown would be looking to receive that at least by the first week of September.

HIS HONOUR: Could I ask the parties, experienced as you both are, in the first instance to negotiate a timetable. I am sure that won't be insurmountable and if a problem arises, which I don't anticipate, then you can bring the matter back before me for argument, but I don't want that to happen, that should not happen in this case.

TRAYNOR: Yes, thank you, your Honour. I just wanted to highlight that.

HIS HONOUR: Could I also indicate that in the fortnight before the trial starts I will be on leave and for most of that period overseas, so, to the extent that any applications need to be made pretrial, they will have to be in advance of that fortnight beforehand.

TRAYNOR: Thank you.”

5. In the events that occurred, the matter was only re-listed before me following an email to the parties reminding them of the fact that I was still scheduled to be on leave from 15 September 2023, as foreshadowed on 21 July 2023.

Consideration

6. Mr Lange of counsel for Mr Fakhreddine accepts that those who instruct him ought properly to have attended to the issue of obtaining expert reports in the nominated areas, and ought to have organised funds for that purpose, long before now. He does not put forward any material that supports this application that could be characterised as unforeseen events or circumstances beyond the control of Mr Fakhreddine or his lawyers.

7. The understandable burden of Mr Lange’s submissions in the circumstances is that Mr Fakhreddine will not be able to secure a fair trial unless counsel then appearing for him is armed with expert evidence from specialists in DNA analysis, fingerprints and blood spatter characteristics with which to cross-examine the several experts in these areas of specialty that have been marshalled by the Crown. He raises the spectre that if Mr Fakhreddine were convicted at trial in the absence of such defence material, there is a significant prospect that a miscarriage of justice will have occurred if some significant flaw or inadequacy in the Crown’s forensic material, upon which he was not able effectively to cross-examine or to which nothing other than a generic challenge could be mounted, later emerges.

6. The difficulty with that proposition is perhaps obvious. If it is contended that Mr Fakhreddine will have secured the funds or the energy to fund an examination of the Crown’s forensic evidence after his trial, there is no basis for delaying the trial until that happens if it could, and should, have been done long before now. Moreover, as the Crown emphasises, the evidence upon which this application proceeds is not such as to generate any confidence that Mr Fakhreddine’s recalcitrance will be overcome or cured by a speculative adjournment.

7. Furthermore, Mr Fakhreddine is as yet unable to identify, other than on a purely theoretical or hypothetical basis, that there are any reasonably likely difficulties with the forensic evidence upon which the Crown relies. Without overlooking the obvious non sequitur, that the issue will not be known until his experts are retained, Mr Fakhreddine does not even offer a general comment suggesting that the Crown’s experts are wrong, either because of some obvious or fundamental methodological error or because their reports contain some other disqualifying characteristic. It must be borne in mind that Mr Fakhreddine was apprehended by a familial match long after the DNA evidence from the scene of the murder had been collected and logged. It included, on the Crown case, DNA evidence related directly to the murder of the deceased, such as fingerprints in the deceased’s blood on the murder weapon, as well as DNA from cigarette butts at the deceased’s apartment and semen in the deceased’s mouth, that would, if accepted, place Mr Fakhreddine at the scene even if not necessarily at the time of the acts causing death. In other words, the circumstantial case mounted by the Crown will presumably inform Mr Fakhreddine’s presence at the apartment at some time, even if not coinciding with the day of the murder. It is therefore difficult in the circumstances to conceptualise the posited forensic disadvantage that the proposed adjournment is intended to cure.

8. Mr Fakhreddine’s adult children have been flagged as possible contributors to his financial needs. No material from them suggests that they are willing to do so, or why, if they are, they have not done so by now. Mr Fakhreddine is in full-time employment and it is accepted that he is not a candidate for Legal Aid in accordance with standard guidelines. The present application has not been mounted upon the basis that he will be legally unrepresented for want of funds to pay for representation: the suggestion that his children will need between 9 and 12 months to raise funds to pay lawyers does not automatically translate into such a conclusion.

9. Finally it should be recalled that the events that give rise to these proceedings occurred as long ago as 12 February 2008. Although it is not in my opinion determinative of the present application, it would generally be in the interests of justice that there be no further delay of the trial if that were possible without corresponding unfairness to Mr Fakhreddine. However, I should indicate for the sake of clarity in the present case that Mr Fakhreddine’s interests in receiving a fair trial would prevail if the only competing issue were the desire to avoid further delay.

10. The present application is entirely without merit. The Crown has conceded that it would form the Crown’s perspective be possible to start the trial later than planned to offer some respite to Mr Fakhreddine. I am disinclined to accept that proposal at this stage. It may be possible to revisit it on 3 October 2023 when the trial is due to start. However, at present I consider that the application to vacate the trial should be refused and the trial date should otherwise be confirmed.

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Decision last updated: 21 March 2025