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

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

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.
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.

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 [2023] NSWSC 928
Case: [2023] NSWSC 928
Decision Date: 16 August 2023

CaseChat Overview and Summary

The case of R v Fakhreddine involved the Crown prosecuting the defendant for the offence of murder committed in 2008. The victim had provided an account to a friend regarding an encounter with a taxi driver before their death. The defendant, who worked as a taxi driver at the time, was charged with the victim's murder. The court had to decide on the admissibility of a statement made by the deceased witness in 2008, which included details about the victim's account of meeting the taxi driver. The legal issues before the court were whether this statement could be admitted for a non-hearsay purpose, specifically to support the credibility of the witness, and whether there was a risk of unfair prejudice to the accused that might lead the jury to misuse the evidence as proof of the accused's identity as the taxi driver in question.

The court considered the common law exceptions to the hearsay rule and whether the statement could be admitted under the 'fresh in the memory' exception. It was noted that the statement was made shortly after the events it described and was consistent with the witness's trial testimony. The court also examined the potential for unfair prejudice, weighing it against the probative value of the statement. The judge found that while the statement could support the witness's credibility, there was a significant risk that the jury might misuse it to identify the accused as the taxi driver, which would be unjust. However, the probative value in supporting the witness's credibility was deemed to outweigh the prejudicial effect, and the statement was admitted.

The court concluded that the statement was admissible for the limited purpose of supporting the credibility of the witness, provided that the jury was appropriately directed on its use. The court emphasised that the statement was not to be considered as proof of the accused's identity as the taxi driver. The trial proceeded with this evidence, and the final outcome of the case was not detailed in the excerpt.

Orders