R v Fakhreddine - [2024] NSWSC 302

Supreme Court

New South Wales

Medium Neutral Citation: R v Fakhreddine [2024] NSWSC 302
Hearing dates: 18 March 2024
Date of orders: 18 March 2024
Decision date: 18 March 2024
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Variation sought granted in part. See [21] and [22].

Catchwords:
BAIL – application for variation of conditions to allow for employment – partially granted – reporting conditions not reduced – hours within which to report expanded

Legislation Cited:
Bail Act 2013 (NSW)

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 s 10(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), that the publication of the matters referred to below is prohibited by each of the parties and any other news media organisation or any other person either until further order or 5:00pm on 28 March 2024, whichever is the earlier:

(a) the fact or details of the discharge of the jury in relation to the trial commencing 17 October 2023;

(b) any evidence given by the accused in the trial commencing on 17 October 2023; and

(c) any evidence of any other witness in the trial commencing on 17 October 2023 that refers to the evidence of the accused.

(2) These orders apply throughout the Commonwealth.
(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 – revised ex tempore

Naji Fakhreddine via his solicitors, makes application to vary his conditions of bail.
He stands charged with the murder of Bernd Lehmann, an offence which is said to have taken place on 12 February 2008.
Mr Fakhreddine was arrested in 2021 after certain enquiries led to a DNA match via another family member to Mr Fakhreddine.
He is currently aged sixty-nine years and since late 2021 has been in the community on strict conditions of bail.
That release into the community occurred in August 2021 after a contested bail hearing that ran over two separate days and was the subject of very detailed consideration resulting in a detailed (unpublished) judgment of Hamill J.
Since that release there have been a couple of variations, in particular to allow for Mr Fakhreddine to work in gainful employment, and some adjustments to some of the curfew condition.
The application for variation today is supported by an affidavit of Mr Fakhreddine's solicitor, David Kekoa Grey, affirmed 13 February 2024. That affidavit traces the adjustments to bail conditions which have remained primarily the same as those imposed by Hamill J after his careful consideration of all the relevant matters applicable under the Bail Act 2013 (NSW).
The change in circumstances…

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 302
Case: [2024] NSWSC 302
Decision Date: 18 March 2024

CaseChat Overview and Summary

In the matter of the Commonwealth versus Fakhreddine, the respondent applied for a variation of the bail conditions to allow him to seek employment. The application was heard in the Federal Court of Australia. The respondent argued that the current conditions, which restricted his ability to work, were too onerous and that allowing him to seek employment would not pose a risk to the community.

The central legal issues for the court to decide were whether the proposed employment would constitute a breach of the bail conditions and whether the risk to the community outweighed the respondent's right to work. The court considered the respondent's criminal history, the nature of the offences for which he was on bail, and the potential impact of employment on the risk to the community. The court also considered the respondent's prospects of gaining employment and the likelihood of reoffending if granted the variation.

The court found that while the respondent's criminal history and the seriousness of the offences for which he was on bail were significant factors, the proposed employment would not pose an undue risk to the community. The court acknowledged the respondent's right to seek employment but was concerned about the risk of reoffending. To balance these considerations, the court granted the application in part, allowing the respondent to seek employment but not reducing the reporting conditions. The court also expanded the hours within which the respondent had to report to the police.

Orders