R v Fakhreddine

[2023] NSWSC 928

Supreme Court

New South Wales

Medium Neutral Citation:	R v Fakhreddine [2023] NSWSC 928
Hearing dates:	20 & 21 July 2023
Date of orders:	16 August 2023
Decision date:	16 August 2023
Jurisdiction:	Common Law - Criminal
Before:	Harrison J
Decision:	On the Crown’s application to rely upon paragraphs [11]-[14] of Mr Vukovic’s statement dated 16 March 2008, refuse to admit those paragraphs.
Catchwords:	EVIDENCE – admissibility – cold case – statement of now deceased witness from 2008 – where statement details victim’s account to friend about meeting a taxi driver – where accused worked as a taxi driver – whether evidence admissible for non-hearsay purpose of supporting credibility of witness – whether risk of unfair prejudice to the accused in that jury might misuse evidence as truth of the representations to identify the accused as the taxi driver concerned
Legislation Cited:	Evidence Act 1995 (NSW) ss 59, 60, 62, 65, 66A, 108A, 136, 137
Cases Cited:	R v Singh (No 4) [2021] NSWSC 75
Texts Cited:	C Vittali-Smith, “To Catch a Killer Cousin: Investigative Genetic Genealogy as a Critical Extension of Familial Searching in Serious Crime Convictions in Australia” (2023) 46(2) UNSW Law Journal, 464
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: Bernd Lehmann was murdered in his apartment at 12/111 Alt Street, Ashfield between approximately 11.42am and 2.30pm on Friday 12 February 2008. It is the Crown case that he was attacked and bludgeoned to death with an ornamental statue. He was later found lying in the doorway of his kitchen. Naji Fakhreddine is now charged with the murder of Mr Lehmann. He has pleaded not guilty to that charge. His trial is scheduled to commence on 3 October 2023.

Background

2. Mr Lehmann was aged 66 at the time of his death and had emigrated to Australia from East Germany in the early 1960s. He became an Australian citizen. From August 2006, Mr Lehmann lived alone at the apartment. He regularly visited the Wests Ashfield Club and the Ashfield RSL Club. He was homosexual and had a number of casual relationships but was not in a long-term relationship at the time of his death. Mr Lehmann had been employed for more than 20 years by the then NSW Department of Aging, Disability and Home Care and was a carer for five men with disabilities who were housed at 14 Wallace Street, Ashfield.

3. Mr Lehmann was scheduled to fly to Dresden departing Sydney on LH9781 from Sydney Airport at 4.55pm on the day of his murder. He failed to do so. His body was later discovered at around 7.20am on 14 February 2008 by his friend Ilija Vukovic. The damaged and blood-covered statue was located on the floor nearby. Mr Lehmann’s friend Ilija Vukovic called the police about 10 minutes later. Mr Vukovic has since died.

4. A crime scene was established. There was no sign of forced entry. Several items were seized for forensic examination, including the statue and numerous cigarette butts from an ashtray in the loungeroom. DNA swabs were also taken from the deceased’s body. The original investigation stalled because there were no suspects who could be forensically linked to the scene. Fingerprints were lifted from the statue but none matched Mr Lehmann’s known acquaintances or friends.

5. Mr Fakhreddine was not arrested or charged with the murder of Mr Lehmann until 17 March 2021. That is because he only came to the notice of the police following a familial search of DNA retrieved form the deceased’s apartment on 15 September 2020: see, for example To Catch a Killer Cousin: Investigative Genetic Genealogy as a Critical Extension of Familial Searching in Serious Crime Convictions in Australia, Callum Vittali-Smith, UNSW Law Journal, Vol 46 No 2, 2023, p464.

6. As a consequence of the fact that nearly thirteen years elapsed between Mr Lehmann’s death and Mr Fakhreddine’s arrest, several witnesses who provided statements to the police shortly following the murder are dead or incapacitated or can no longer be traced. The Crown proposes in these circumstances to rely upon the statements of such witnesses and, to the extent that they contain evidence of a hearsay nature, proposes to rely upon an exception to the hearsay rule on the basis that these witnesses are not available to give evidence about an asserted fact.

7. It is accepted that Mr Fakhreddine worked as a taxi driver in 2008. Relying upon that matter, referred to in Mr Vukovic's statement, the police compiled a list of taxi drivers who may have fitted his description. They also contacted a number of taxi drivers who went to the clubs and asked them to provide DNA and fingerprints for the purpose of exclusion. Mr Fakhreddine was recorded on CCTV at 11.48pm on 7 February 2008 entering the Wests Ashfield Club wearing his taxi driver uniform. Mr Lehmann is shown on the same recording entering the club about four minutes later and handing a red shopping bag to the concierge.

8. The key issue at trial is whether the Crown can prove that it was Mr Fakhreddine who committed the murder. Accordingly, the Crown is obliged to exclude the reasonable possibility that he was killed by someone else. The Crown therefore perceives that it is obliged to place before the jury evidence regarding as much of Mr Lehmann’s movements and activities in the days before his death in order to account for his movements and the fact that he was generally meeting up with friends. In this respect, particularly relevant witnesses are those:

1. who Mr Lehmann saw in the days before his death;

2. who Mr Lehmann saw or spoke to the night before his death;

3. who Mr Lehmann saw or spoke to or who tried to contact him on or around the day of his scheduled departure, and

4. who were identified as Mr Lehmann’s contacts or friends through phone records or address books but who voluntarily gave their DNA and fingerprints and were positively excluded by the police as suspects.

9. Mr Vukovic is such a witness. He gave a statement to the police on 16 March 2008 about Mr Lehmann seeing a taxi driver shortly before his death. In that particular respect, the Crown wishes to rely upon the following passages of Mr Vukovic’s statement, to which Mr Fakhreddine objects:

“11. Over the last couple of months Bernd spoke to me about a taxi driver man who he had met at Wests Leagues Club in Ashfield a number of times. Bernd told me that the taxi driver loved to play the poker machines and they would often meet up and play together at the club. Bernd described the man to be of Arabic appearance and was 53 years old but he looked older than that. Bernd told me the taxi driver had borrowed $20 from him a couple of weeks before he was due to fly out. I have never seen this man before and I do not know his name.

12. On number of occasions the taxi driver would drive Bernd home after they had been at the club together. A number of times, Bernd invited him to come in for a coffee and on each occasion he would say no. About one week before Bernd was due to leave the taxi driver gave him a lift home from the club and the taxi driver invited himself in for a coffee on this occasion.

13. The taxi driver and Bernd had a coffee and told Bernd he was tired. Bernd told him he had a spare bed and he could have a rest in the room. The taxi driver went into the room and had a rest for a while in the spare bedroom while Bernd stayed in the lounge room. Bernd mentioned next that the taxi driver was calling out ‘I’m horny when I’m tired.’ Bernd went into the bedroom and sucked him.

14. Bernd told me that he was surprised with the man because he was tired then Bernd sucked him off and he wasn’t tired any longer and left Bernd’s home after that.”

Crown submissions

10. The Crown made the following submissions concerning the purposes for which it contended this evidence could be adduced in the circumstances.

Assessing the credibility of Marcello Araldi

11. Marcello Araldi was a friend of Mr Vukovic and Mr Lehmann. He gave statements to the police but initially failed to disclose the sexual nature of their relationships. Mr Araldi has been subpoenaed to give evidence and it is anticipated he will be called by the Crown to give evidence. Although it was never adopted in a police statement, Mr Araldi said that something about a taxi driver “rang a bell”. On 22 May 2008, Mr Araldi told Detective Sedgewick that Mr Lehmann mentioned a taxi driver he picked up. He offered the taxi driver to stay the night, but “they just had sex and the taxi driver left”. Mr Lehmann told him this about two weeks before his death.

12. Mr Araldi was asked about this conversation with Mr Lehmann at a committal hearing on 2 September 2022. This conversation had occurred in the presence of Mr Lehmann and Mr Vukovic. Mr Araldi could not recall in the witness box anything more than that the words “taxi driver” were said and that the conversation occurred in Mr Lehmann’s lounge room in his Ashfield apartment.

13. In cross-examination at the committal by the Crown, Mr Araldi said that if he had had any further information in May 2008 to assist the police in the investigation, he would have provided it. He accepted he had said something about a taxi driver to police in May 2008. However, he could not recall anything about the nature of what he said about it. Mr Araldi accepted that if he had told the police about Mr Lehmann offering the taxi driver to stay the night and that they had sex, it would have been true. He agreed that if he had said he heard that about two weeks before Mr Lehmann’s death, it would have been true. Other evidence was led that Mr Araldi suffered from PTSD and had problems with his memory.

14. In these circumstances, the Crown submits that given the likelihood that Mr Araldi’s credit will be challenged, Mr Vukovic’s evidence is relevant for a non-hearsay purpose, namely in relation to re-establishing Mr Araldi’s credibility that this conversation occurred in fact, quite apart from the truth of Mr Lehmann’s representation to him about it.

Assessing the credibility of Ilija Vukovic

15. The Crown must also exclude Mr Vukovic as a person responsible for the murder. Accordingly, the Crown submitted that his representations about what Mr Lehmann said about a taxi driver should be admitted to allow the jury to assess Mr Vukovic's credibility and whether they are satisfied that he was generally telling the truth to the police. That is, the fact that Mr Vukovic told the police Mr Lehmann referred to a taxi driver, who was the same age as Mr Fakhreddine, the same ethnic background as Mr Fakhreddine and was also a person who went to the Wests Leagues Club Ashfield, (and whose DNA is later linked to the crime years after Mr Vukovic's death), is relevant to an assessment of the truthfulness of the witness when considering the totality of his evidence.

16. If Mr Vukovic were still alive, his evidence of this conversation would be admissible pursuant to s 66A of the Evidence Act 1995 in that it is apparent that it occurred in the week before Mr Lehmann’s death and it sets out Mr Vukovic’s contemporaneous feelings about his encounter with the taxi driver. However, as Mr Vukovic is dead, and s 65(2) of the Act is restricted to first hand hearsay, Mr Lehmann’s representations to Mr Vukovic about matters which are not within Mr Vukovic’s personal knowledge (that he did not see, hear or otherwise perceive) are inadmissible unless they are relied upon for a non-hearsay purpose. The Crown submits that the evidence is admissible for a non-hearsay purpose.

17. Section 60 of the Act provides as follows:

Exception: evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)).

(3) However, this section does not apply in a criminal proceeding to evidence of an admission.

18. The Crown submits that the evidence is admissible for a purpose other than the proof of the truth of the asserted fact, namely, in the assessment of the credibility of another witness, Marcello Araldi, who apart from Mr Vukovic is the only person who mentions that Mr Lehmann had seen a taxi driver with whom he had a sexual encounter in the weeks before his death. Further, it is submitted by the Crown that this evidence is admissible for a non-hearsay purpose, namely, in the assessment of the credibility of Ilija Vukovic himself, especially where Mr Vukovic was initially considered by police to be a suspect and where the Crown must exclude the reasonable hypothesis that someone else murdered Mr Lehmann, despite the forensic evidence implicating Mr Fakhreddine.

Mr Fakhreddine’s submissions

19. Mr Fakhreddine objects to this evidence. He submits that the Crown’s line of reasoning demonstrates that it is in fact relying upon the representations for a hearsay purpose. For example, the Crown emphasises a number of what are said to be similarities between Mr Fakhreddine and the person described in Mr Vukovic’s statement. Mr Fakhreddine contends that it is only if the truth of the representation is accepted – that is, that Mr Lehmann said those things about the taxi driver – could the representations be relevant to a fact in issue.

20. However, Mr Fakhreddine submitted that even if I were to conclude that the Crown was relying upon the representations for a non-hearsay purpose, Part 3.7 of the Act nevertheless precludes their admission: on the Crown argument, the evidence is “credibility evidence” so that the Part 3.7 restrictions would apply to it.

21. Mr Fakhreddine also emphasises that this is not a typical case in which credibility evidence is being considered, involving, as it usually does, previous consistent statements (to bolster credibility) or lies (to undermine credibility). Mr Fakhreddine submitted that the contents of [11] to [14] of Mr Vukovic’s statement are not being led as statements that are consistent with other evidence but are in fact completely divorced, in terms of their substance, from the remainder of Mr Vukovic’s evidence.

22. Mr Fakhreddine also contended that the Crown faces the following difficulty: even if it could be shown that Mr Vukovic was telling the truth in these paragraphs, that fact is logically incapable of demonstrating that he told the truth in respect of other matters.

23. Section 108A of the Evidence Act provides as follows:

Admissibility of evidence of credibility of person who has made a previous representation

(1) If:

(a) evidence of a previous representation has been admitted in a proceeding; and

(b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding;

credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility.

(2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to:

(a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth; and

(b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation.

24. Mr Fakhreddine submitted that a truthful statement by a witness on a single occasion in respect of a particular matter cannot substantially affect the assessment of his credibility generally. That is the case even on the assumption that his representations are truthful. The situation is even more tenuous in circumstances where there is no other evidence, or at best scant evidence, that the representations are truthful.

25. Mr Fakhreddine submitted that, even if I were to reject his submissions, I should exclude the portions of Mr Vukovic’s statement under s 137 of the Act. As noted, the Crown maintains that the evidence of Mr Vukovic is to be led solely in respect of credibility and that, on the Crown’s hypothesis, the truth or otherwise of the representations is immaterial. However, the evidence of Mr Vukovic goes beyond that given by Mr Araldi. For example, although there is a reference to Mr Lehmann having sex with a taxi driver at his residence, Mr Araldi gave no further information capable of identifying the taxi driver. In contrast, Mr Vukovic gave information concerning the person’s age, ethnicity and attendance at the Wests Leagues Club. None of these details was mentioned by Mr Araldi, yet they would be before the jury, ostensibly in order to assist with the assessment of his credibility.

26. Mr Fakhreddine also submitted that even though it would be open to me at the trial to give a direction to the jury under s 136 of the Act, limiting the use of the evidence to an assessment of Mr Araldi’s credibility, it would involve “mental gymnastics” for the jury to ignore the evidence of identification in the context of the Crown’s circumstantial case. He submitted that there would be a very real risk of unfair prejudice to him. Bearing in mind that there is apparently a contemporaneous record of what Mr Araldi said to the police in 2008, Mr Fakhreddine submitted that the probative value of Mr Vukovic’s evidence in the assessment of Mr Araldi’s evidence is slight and that s 137 mandates its exclusion for that suggested purpose.

27. Similarly, Mr Fakhreddine submitted that I should exclude the portions of the statement of Mr Vukovic for the same reasons advanced in respect of Mr Araldi. Moreover, admission of this evidence would, according to Mr Fakhreddine, “entirely subvert the basis of the rule against hearsay, since it would allow evidence of representations in respect of one topic, which would otherwise be second-hand hearsay”, supposedly in order to bolster Mr Vukovic’s credit and his evidence in respect of entirely unrelated topics. Mr Fakhreddine contended that the risk of unfair prejudice to him is considerable, in particular by reason of his inability to cross-examine Mr Vukovic and the limited probative value of his evidence in any event.

Consideration

28. Section 59 of the Act excludes the admission of hearsay evidence, but it may be admitted if it falls within one of the exceptions for which the Act provides. The exceptions to the rule for the purposes of Division 2 of Part 3.2 of the Act will only apply if the representation was one that was made by a person with personal knowledge of the asserted fact, that is to say, it is restricted to first-hand hearsay. Section 62 provides for this as follows:

Restriction to "first-hand" hearsay

(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.

(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

(3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.

29. As already noted, Mr Vukovic is dead. The Crown maintains that Mr Vukovic is one of the witnesses who falls into the category of those described at [8] above who is able to give evidence of Mr Lehmann's movements and activities in the days before his death. The Crown maintains that Mr Vukovic's evidence is covered by s 65(2)(b) or (c) of the Evidence Act. That section provides relevantly as follows:

65 Exception: criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation--

(a) …

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or

(c) was made in circumstances that make it highly probable that the representation is reliable, …

30. Section 66A should also be noted:

66A Exception: contemporaneous statements about a person's health etc

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.

31. When relying on s 65(2) in relation to hearsay, the Crown must show with respect to each representation either that the circumstances were such that it is unlikely that the representation was a fabrication, if the representation was made when or shortly after the asserted fact occurred, or that it was made in circumstances that make it highly probable that the representation is reliable. See in this regard R v Singh (No 4) [2021] NSWSC 75 at [22]-[49] per N Adams J.

32. When this matter commenced before me, there were several areas of dispute between the parties. They included disagreement about the extent to which the Crown could rely upon evidence from various unavailable witnesses that was to be tendered for a hearsay purpose. In the events that occurred, those differences would appear now to have been resolved. As will be apparent, the remaining dispute relates to the Crown’s proposal to rely upon what would otherwise be inadmissible second-hand hearsay upon the basis that it proposes to do so only for a non-hearsay purpose. Paragraphs [11]-[14] of Mr Vukovic’s statement are relied upon in that way.

33. The Crown has submitted that, if Mr Vukovic were still alive, his evidence would be admissible in accordance with s 60 of the Act for the non-hearsay purposes of first, the assessment of the credibility of Marcello Araldi, who is the only other person who mentions that Mr Lehmann had seen a taxi driver with whom he had had a sexual encounter in the weeks before his death, and secondly, in the assessment of the credibility of Mr Vukovic himself.

34. The second-hand hearsay statements about what Mr Lehmann told Mr Vukovic regarding his relationship with a taxi driver in the week before he died are therefore controversial. The difficulty arises because Mr Vukovic is now dead and his challenged evidence concerns a conversation he allegedly had with Mr Lehmann which contains Mr Lehmann’s description of a sexual encounter with a taxi driver.

35. Section 137 of the Act is in the following well-known terms:

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

36. Mr Lange submitted that, in circumstances where there is a real dispute as to what might have been said by Mr Lehmann to either Mr Vukovic or Mr Araldi, it would not be possible for me to be satisfied that it is of such significant probative value as to outweigh the danger of unfair prejudice to Mr Fakhreddine. For example, there is already material upon which an assessment of the credibility of Mr Vukovic and Mr Araldi might be based, dealing with other aspects of Mr Vukovic’s account, and which the Crown says is corroborated by his truthful statements in paragraphs [11] to [14]. In contrast, the danger of unfair prejudice is significant because there is a very real prospect that no jury could be expected realistically, even with the benefit of careful directions limiting the use to be made of the evidence pursuant to s 136 of the Act, to distinguish the illegitimate and impermissible use of Mr Vukovic’s evidence as “proof” that the taxi driver with whom Mr Lehmann described having sex was Mr Fakhreddine, from the allegedly legitimate and permissible non-hearsay purpose of using the evidence to support the credibility of Mr Vukovic or Mr Araldi.

37. In my opinion, the legitimate probative value of the evidence is on this analysis quite small, particularly having regard to the forensic evidence that led to Mr Fakhreddine’s arrest in the first place, whereas the danger of unfair prejudice arising from the jury reasoning that he was or must have been the taxi driver Mr Lehmann described to Mr Vukovic is large by comparison. I am not satisfied that it is possible with any confidence to be satisfied that a jury, howsoever instructed in the distinction between the permissible and impermissible use they could make of the evidence would, or at the very least might, not reason that the paragraphs in Mr Vukovic’s statement were a reliable reference to or description of Mr Fakhreddine.

38. Without deciding the issue of whether the Crown could use the evidence in [11]-[14] of Mr Vukovic’s statement for the non-hearsay purpose it identifies, about which I have some doubt, I consider that I must reject the evidence in accordance with s 137 of the Act.

39. I propose to deal with the limited remaining evidentiary matters that have not been resolved once the trial has commenced.

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Decision last updated: 21 March 2025