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

1. Naji Fakhreddine via his solicitors, makes application to vary his conditions of bail.

2. He stands charged with the murder of Bernd Lehmann, an offence which is said to have taken place on 12 February 2008.

3. Mr Fakhreddine was arrested in 2021 after certain enquiries led to a DNA match via another family member to Mr Fakhreddine.

4. He is currently aged sixty-nine years and since late 2021 has been in the community on strict conditions of bail.

5. 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.

6. 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.

7. 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).

8. The change in circumstances since then have been identified as, first and foremost, a trial that was held in October and November 2023 before a jury and Harrison CJ at CL, which resulted in a hung jury and therefore no verdict.

9. Second, some offers of work have come Mr Fakhreddine's way since that trial, given that he had to cease work while he attended his trial which ran for some weeks. There is evidence that he has been offered work with his son's company, [REDACTED].

10. Helpfully, the officer-in-charge has carried out some investigations of that proposed employer company and confirmed that whilst there is no website for the business, it does exist as a Yellow Pages entry, stating that the business is based in Sans Souci. The officer-in-charge confirmed with Mr Fakhreddine's son that work will be offered driving trucks and occasional labouring.

11. Another potential employer, [REDACTED], was proposed as a potential employer, with a single page letter signed by a person called “Daniel” (no surname). However, enquiries by the officer-in-charge to a mobile number where no response was provided suggests to me that there is a question-mark over this particular business being identifiable as a potential employer for Mr Fakhreddine. The officer-in-charge determined that there is no email address or website address on the letterhead, however there is a street address at [REDACTED] in New South Wales.

12. It seems to me appropriate that there be a variation to the current bail conditions to substitute as a potential employer “[REDACTED]” to allow Mr Fakhreddine to work within the [REDACTED] area. This would be in substitution for the company that Mr Fakhreddine used to work for, namely, “[REDACTED]”.

13. A second aspect of the application is a proposal to vary the reporting conditions to report only Mondays and Thursdays between 8:00am and 6:00pm rather than the current condition which requires reporting to St George Police Station on Monday, Tuesday, Thursday, Friday and Saturday.

14. Counsel for Mr Fakhreddine submitted that he has been on bail for almost three years, he is not a flight risk, with significant family in Sydney including his wife and an adult son who resides with he and his wife. He has grandchildren and other children also resident in New South Wales. He has reported and complied with his conditions of bail over the almost 3-year period since his release. The reporting condition is onerous.

15. I acknowledge that there is no evidence of any breaches of bail presented to me by the Crown and no submission made that there has been any non-compliance with bail conditions. Whilst it is acknowledged through his counsel that Mr Fakhreddine has family living overseas and that before arrest he had travelled overseas, his counsel makes the point that he has always returned to Sydney. He has presented to court when required and attended his trial every day and faced the charge levelled against him.

16. I should also note that Mr Fakhreddine is present in Court today assisted by a Lebanese interpreter.

17. The Crown has concerns in respect of the proposed variation to the reporting condition. First, it is noted that the package of conditions fashioned by Hamill J in 2021 were the product of a carefully structured and considered judgment, after extensive debate including cross-examination of relevant witnesses. There have been trips to and from Lebanon. Mr Fakhreddine has family overseas. The trial that was held did not result in an acquittal. A new trial is approaching in six months and there is no real logistical difficulty stated as to why the applicant cannot continue to report.

18. I understand from Mr Fakhreddine's counsel that the St George Police Station is a short distance from his residence.

19. It seems to me, having carefully considered all the matters raised in the affidavit material, the seriousness of the charge, which as noted by Hamill J and as revealed in the detailed Crown case statement, has as its basis clearly identified and developed evidence strongly supporting what I consider to be a relatively strong Crown case, it is appropriate that the conditions currently in place remain.

20. It seems to me that reporting five out of seven days a week is not unduly onerous. If work conditions mean that there needs to be some adjustment to the hours within which Mr Fakhreddine needs to report, that adjustment could be made on application to my chambers, but at this stage the condition as currently worded remains in place and a variation to that condition will not be permitted.

21. Accordingly, the application for variation to the bail conditions will be limited to this amendment to condition 2: “to work for [REDACTED] within the [REDACTED] area".

22. After further discussion between counsel for the applicant and the Court once judgment was given, and with the consent of the Crown, a practical adjustment is made to the reporting condition to extend the hours within which the applicant must report so that he can accommodate his work obligations. Accordingly, I vary the reporting condition to adjust the time within which the applicant is to report to between 5:00am and 8:00pm. The reporting condition is now worded as follows: “To report to St George Police Station between 5:00am and 8:00pm on Monday, Tuesday, Thursday, Friday and Saturday”.

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Decision last updated: 26 February 2025