R v Fakhreddine - [2023] NSWSC 1333

Supreme Court

New South Wales

Medium Neutral Citation: R v Fakhreddine [2023] NSWSC 1333
Hearing dates: 06 November 2023
Date of orders: 06 November 2023
Decision date: 06 November 2023
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
See [8]-[9], [22], [28]

Catchwords:
CRIMINAL LAW – murder – evidence – Crown revisitation of a prior ruling – changed forensic landscape – evidence initially ruled inadmissible due to unfair prejudice – out of court statement about out of court statement potentially identifying accused as having sexual encounter with deceased in leadup to the murder – prejudice remains – workers compensation documents and accused’s medical history – Crown seeks to use for potential financial or interpersonal motive – where nexus between evidence and suggested motive rises no higher than speculation – witness statement of sexual partner of the deceased – out of court statements about out of court statements recounting conversations with the deceased

Legislation Cited:
Evidence Act 1995 (NSW) s 137

Cases Cited:
R v Fakhreddine [2023] NSWSC 928

Category: Procedural rulings
Parties: Rex (Crown)
Naji Fakhreddine (Accused)
Representation:
Counsel:
S Traynor (Crown)
J Ellis (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: Three separate evidentiary issues have arisen for consideration. Having already informed the parties of my decisions, what follows are my reasons for judgment.

The statement of Ilija Vukovic

On 16 August 2023 I published my reasons for rejecting an application by the Crown to rely upon four paragraphs in a statement given to the police by Mr Vukovic on 16 March 2008: see R v Fakhreddine [2023] NSWSC 928. Mr Vukovic is dead and the representations that the Crown wishes to adduce in the trial concerning what Mr Vukovic heard Mr Lehmann say about meeting a taxi driver for sex are in the form of out of court statements (by Mr Vukovic) about out of court statements (by Mr Lehmann), and are therefore second-hand hearsay and inadmissible for a hearsay purpose. In rejecting the original application to admit this material, I formed the view that it offended s 137 of the Evidence Act 1995, as there was a risk that the jury might not be able to appreciate or apply the distinction between evidence admitted for a non-hearsay purpose, in this case, supporting the credibility of Mr Araldi who overheard the same conversation, and treating the evidence as proof of the truth of what Mr Lehmann said. The Crown now maintains that the course of the trial has altered the forensic landscape in which that ruling was originally made and that there are now legitimate reasons for me to reconsider my decision.
The Crown reasoned as follows. Mr Fakhreddine indicated that he will give evidence to say not only that he was present at the apartment on the day that Mr Lehmann was murdered but also that he was present in the apartment when the murder took place. The…

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 1333
Case: [2023] NSWSC 1333
Decision Date: 06 November 2023

CaseChat Overview and Summary

The case of R v Fakhreddine involved a complex criminal dispute that reached the courts of Australia. The central issue was the admissibility of certain evidence in a murder trial, where the accused faced charges of killing another individual. The evidence in question included statements that were initially deemed inadmissible due to the potential for unfair prejudice. These statements suggested that the accused had a sexual encounter with the deceased prior to the murder. The Crown sought to revisit the ruling on the admissibility of this evidence, citing changes in the forensic landscape and the potential for a clearer understanding of the context of the statements.

The court was tasked with determining whether the prejudicial effect of the evidence outweighed its probative value, particularly given the nature of the statements and their relevance to the case. The Crown also sought to introduce workers' compensation documents and the accused's medical history, arguing these could demonstrate a potential motive based on financial or interpersonal factors. However, the court found that the connection between the proposed evidence and any suggested motive was speculative at best, and did not establish a sufficient nexus to warrant its admission. Additionally, the court considered the impact of witness statements, which included out-of-court statements about conversations the deceased had with others regarding the accused.

Upon review, the court upheld the earlier ruling on the inadmissibility of the prejudicial evidence. The potential for prejudice to the accused was deemed to significantly outweigh any probative value the statements might have had. The court found that the prejudicial effect of the statements, particularly those that suggested an intimate relationship between the accused and the deceased, remained substantial and would likely lead to an unfair outcome. Consequently, the evidence was ruled inadmissible, and the trial proceeded without it. The final orders of the court were to exclude the contested evidence from the trial, ensuring that the accused's right to a fair trial was upheld.

Orders