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

1. 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

2. 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.

3. 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 Crown maintains in these circumstances that Mr Fakhreddine’s case is now significantly different to when I rejected the Vukovic evidence. Mr Fakhreddine has now revealed more details of where he was at the relevant time, what he says he saw, and what he said he did. There is now no dispute as to the forensic evidence linking Mr Fakhreddine to the scene or that he was present in the apartment on the day. There is also a concession from Mr Fakhreddine that he had engaged in a sexual encounter with Mr Lehmann sometime in the two week period before the murder, not only on the day that it took place. The Crown contends that the degree of prejudice has in such circumstances “significantly lessened”.

4. I think that submission misconceives the nature of the prejudice alleged. The evidence of Mr Vukovic is not admissible for a hearsay purpose because it is concerned with an out of court statement by Mr Vukovic who is dead about an out of court representation by Mr Lehmann who is also dead. Although Mr Fakhreddine was a taxi driver in February 2008, he does not concede that he was the taxi driver to whom Mr Lehmann was referring in his representation to Mr Vukovic and Mr Araldi. In simple terms, there remains in contest the question of whether Mr Lehmann was, or could have been, referring to a different Lebanese taxi driver with whom he had recently had sex. Mr Fakhreddine would in this context wish to emphasise that the twofold prejudice of not being able to cross-examine Mr Vukovic on the one hand and the possibility that the jury might reason, especially in the absence of an available challenge, that Mr Vukovic’s evidence was evidence that the taxi driver to whom Mr Lehmann referred was or must have been Mr Fakhreddine. I appreciate the Crown’s argument that evidence which has now emerged concerning the fact that Mr Fakhreddine had in fact been to Mr Lehmann’s apartment in the weeks before his death for a sexual encounter tends to reduce the significance of that prejudice. However, if Mr Fakhreddine maintains that the prejudice persists, I am not prepared to approach the matter upon the basis that cross-examination of Mr Vukovic would not have provided some tangible forensic advantage for Mr Fakhreddine or that the loss of that opportunity to cross-examine him does not amount to unfair prejudice if Mr Vukovic’s contested evidence is adduced.

5. Moreover, s 137 brings forward a balancing exercise that draws attention to the probative value of the evidence in question. In the course of his evidence, Mr Araldi said the following things about what he told the police in 2008 about Mr Lehmann’s reference to picking up a taxi driver for sex:

“Q. Do you recall in 2008, after you had made your statements, giving the police some additional information to assist them with their inquiries?

A. Apparently my statement says that, so I must of.

Q. When you were at the police station on that day, just bear with me for one moment, please, did you tell the police about the conversation that you had overheard between Bernd and Ilija about the taxi driver?

A. I can't remember.

Q. You see, I'm going to suggest to you that you told Detective Sedgwick the following information in May of 2008, that there was ‘a conversation about a taxi driver that he picked up’, that is that Bernd picked up, ‘two weeks prior to death’, ‘that Bernd offered him to sleep’, that is the taxi driver, ‘had sex and they took off’, and then there is a note there ‘told story two weeks’. That is something that you told Detective Sedgwick on 22 May 2008, isn't it?

A. I must have, if it is on my statement I must have said it then.

Q. At the time that you were speaking to the police in 2008 after Bernd had died, you would have been doing your best to tell them any information that could have assisted them with their inquiries, correct?

A. Of course, yeah.

Q. When you spoke with the police in May of 2008, if you had told them such information it would have been the truth, correct?

A. Yes.

Q. So what you told the police about this conversation with the taxi driver was said because it was true, you'd overheard this, correct?

A. True.

…

Q. Would it be fair to say though that your memory of the events in 2008 were better in 2008 than now?

A. No.

Q. Would it be better to say that the events that you gave evidence about in your statement to the police in March of 2008 and 17 April 2008 and additional information in May of 2008, they were much closer in time to Bernd's death, correct?

A. Sorry, I'm just upset, sorry. I don't can you repeat that question, sorry?

Q. Yes. So the events that you were speaking of in your statement of 2 March 2008, sorry 6 March 2008 when you were telling the police about seeing Bernd and when giving that statement, those events would have been fresh in your memory at the time?

A. Correct, yeah.

Q. And certainly much fresher than they are today?

A. Of course, yeah.

Q. Similarly when you gave your statement to the police on 17 April 2008, the events about the last time you had seen Bernd and so forth, they would have been fresher in your memory than today?

A. Of course, yeah, yeah.

Q. Again, in terms of the statements that you made to the police, you were able to provide them with information about comings and goings around the time in 2008 when you had been interacting with Bernd and Ilija?

A. Yes.”

6. At the time when I rejected the Crown’s original application to adduce Mr Vukovic’s evidence, Mr Araldi had not testified in these proceedings. He has since done so. Not only does his evidence confirm the terms of what he told police about the conversation with Mr Lehmann, he was not challenged upon its truthfulness. Moreover, its reliability must necessarily fall to be assessed by, among other things, its close contemporaneity to the conversation itself. In other words, the Crown’s concern to bolster or enhance Mr Araldi’s credibility has been shown by subsequent events to be a matter of little significance. The probative value of Mr Vukovic’s contested paragraphs remains in my view outweighed by the prejudice that I have described.

7. The Crown also submitted that the evidence was admissible for a further non-hearsay purpose, namely, to rebut criticism of the police investigation. The Crown anticipates that Mr Fakhreddine will suggest that the police investigation may not have been as thorough or open-minded as it should have been, including investigation of Mr Lehmann’s use of marijuana. Mr Vukovic’s evidence is said by the Crown to provide a clear basis for why the police spent significant time trying to locate a taxi driver of a particular age and background. The Crown maintained that the evidence will place the police inquiries into context and show that the police followed a reasonable line of inquiry.

8. That submission would possibly have some force if it were not for the fact that Mr Araldi’s conversation with Detective Sedgwick on 22 May 2008 provided the police with precisely that same justification for pursuing the taxi driver line of inquiry. It would not significantly assist the Crown case to be able to show that Mr Araldi was not the only source of the information in question. The prejudice that I have identified remains decisive.

9. Finally in this respect, the indications are that Mr Fakhreddine will in any event give evidence to confirm that he was a taxi driver in February 2008 and that he had sex with Mr Lehmann at his apartment in the weeks leading up to the murder. That is no more and no less that an uncontroversial affirmation of what Mr Lehman represented to both Mr Vukovic and Mr Araldi. I agree with the Crown submission that the case has moved on since my original ruling. I disagree with the submission that it has changed things in a way that reduces the unfair prejudice. I accept that it is possible that Mr Fakhreddine’s evidence may well effectively render the issue completely moot.

2004 Workers Compensation documents

10. During a search of Mr Fakhreddine’s premises at Bellevue Street, Arncliffe on 17 March 2021, the police seized a large volume of materials relating to a workers compensation claim he made when working as a taxi driver with P K Cabs Pty Ltd. This related to an assault upon him that he reported to the police in 2004.

11. Mr Fakhreddine claimed that he was physically assaulted at that time by two men early one morning. No-one was apprehended. He went to hospital but did not stay to be assessed. He went to his own doctor the following day. He claimed to have suffered minor soft tissue injuries and was later diagnosed with Post Traumatic Stress Disorder, as well as later claiming to have suffered an injury to his penis. The documents disclose that Mr Fakhreddine made a series of representations in support of his claim.

12. The particular material upon which the Crown sought to tender is as follows.

13. First, Mr Fakhreddine gave the following history to Dr Klaas Akkerman on 13 May 2005:

“HISTORY: He is a 50 year old man living at Arncliffe with his wife aged 48. They have been together for 30 years. He has eight children, four of whom live at home. Those at home are aged 20, 19, 17 and 10. They are all well except for one child who has a disability. He has epilepsy and is a bit slow. These are all well except for one child who has a disability. He has epilepsy and is a bit slow. These are Mr Fakhreddine’s words. His GP is Dr Awada. He has been a taxi driver for 17 years. He had been working for PK Cabs for one year when the assault happened. The date of injury was 7 June 2004 and he has not worked since. He said that on one occasion he helped his son for two hours. He was assaulted by two men and was beaten everywhere, mainly in the head and the back and his knee. The police arrived. He had taken the mobile off the men.

In spite of this the men were not apprehended. He is still very confused about why it happened. He said, ‘I have no enemies, they did not take my money’. He said if they wanted money he would have given it to them.

From a physical point of view he hurt his neck and his knee. He did go to hospital but he discharged himself after a short time. Currently he is certified unfit for any duties. Prior to 10 March 2005 he was fit for suitable duties.

I enquired as to what symptoms he had early on.

● He said he hurt his neck, his hand, his left knee and his back.

● He had initial and middle insomnia. He slept during the day.

● His concentration was down.

● His short-term memory was down.

● His long-term memory was normal.

● His level of energy was down.

● His level of interest was up and down.

● He was tearful.

● He was irritable.

● His appetite was down and he lost 7 kg inadvertently.

● His libido was down.

He currently still has the same symptoms. …

Cigarettes: He smokes 40-50 cigarettes per day.

…

WORK HISTORY: He was a truck driver and has been a taxi driver for 17 years.

…

RELATIONSHIPS: He says his relationship with his wife is somewhat strained. His children are well except for the one suffering from epilepsy.

…

FINANCIAL SITUATION: He said that one of his daughters is getting married and he had to borrow money to send her overseas. He has difficulties paying this back. Money is tight.”

14. Secondly, Dr Akkerman’s report of 17 February 2006 includes the following references:

“He presented for assessment on 16 February 2006.

…

He returned to work two weeks ago. He is now driving a taxi again. He is working 20 hours per week.

…

I inquired as to his sleep and he said his sleep is normal. His concentration is normal. His short term memory is somewhat down. His level of interests is normal. His appetite is normal. His libido is down. This related to some problems in his marital relationship.

…

Cigarettes: He now smokes 35 to 40 cigarettes per day.

…

Financial situation: Money is tight.”

15. Thirdly, a Workers Compensation Commission Medical Assessment Certificate dated 10 October 2005 set out the following information relating to an assessment of Mr Fakhreddine’s degree of permanent impairment:

“The applicant stated that since then he has had numerous arguments with his wife and feels very nervous. He stated that he has a problem of being very upset. He stated that his wife had been overseas and soon after coming back he suffered his injury which included an injury ‘to his privates’. He stated that he has recently been told that he will require an operation ‘to fix his privates’. The applicant stated that he lives in his own previous home but since his injury lives in separate rooms from his wife. He stated the relationship with his wife has resulted in a deterioration within the relationship and that he continues to live in separate rooms in his son’s house in Arncliffe. The applicant stated that when there are large arguments between his wife and himself he goes to live in his other son’s home in Revesby, usually for a few days at a time.

…

The applicant stated that he receives compensation payments of some $2,300 a month whereas previously he was capable of earning $1,000 a week.

…

He went on to state-

‘I continue to feel nervous and am always having arguments with my wife. I cannot have sex because of the problem with my privates. My private is broken’

…

He stated that he cannot buy as many things for his children as he did previously because of lack of income.

…

When questioned about substance abuse, he stated that he had not been drinking for some 20 years until last week. He stated that some 20 years ago he was drinking heavily and decided to stop drinking. He, however, has recommenced drinking in the past week and is now drinking some one carton of beer per week. The applicant stated that he is smoking some 40 cigarettes per day. He denies the use of illegal drugs.

…

The applicant stated that his only fun time is when he gets picked up by friends to play cards and he goes around to a friend’s house. He stated that he is usually driven there by a friend but does drive his own car on his own occasionally.”

16. Fourthly, on 15 February 2008, Mr Fakhreddine’s lawyers wrote to his workers compensation insurer in the following terms:

“We refer to the above matter and to your letter of 8 February 2008.

We have to advise that we have been instructed to accept your offer of $75,000.00 being a lump sum commutation settlement.”

17. Fifthly, on 19 May 2008, Dr Michael J Rochford examined Mr Fakhreddine and reported to his workers compensation insurer in these terms:

“HISTORY AND COMPLAINT

Mr Fakhreddine gave a history that he was a cab driver for P K Cabs Pty Ltd and on 7 June 2004, at approximately 1.00am in the morning, he was assaulted by two passengers whom he had taken from Newtown to Tempe. The two passengers had been eating food in the back seat of the car and at arriving at their destination informed him they had no money to pay and left the cab without paying.

Mr Fakhreddine climbed into the back seat and was cleaning out the food debris when the passengers returned and attacked him while he was still in the rear seat of the car. He states that they knocked him unconscious and stole his taxi cab takings of approximately $90.00. He said by chance the police came by and stopped but instead of chasing the assailants they were more interested in taking a statement from him.

He drove his cab to Newtown Police Station where the police took a statement and also took pictures of his injuries. He did not get a copy of the statement.

Mr Fakhreddine states that he then drove his cab home to Arncliffe followed by the police to ensure that he arrived home safely. He was taken then by his wife to St George Hospital where he was under observation for four hours and then discharged himself as he did not wish to wait for x-rays. No x-rays were taken at the hospital.

Mr Fakhreddine subsequently saw his general practitioner, Dr Awada. He complained of injuries to his face, neck, right arm and shoulder and lower back. He was referred for x-rays. X-rays were taken of his face, right hand, right knee, right arm and elbow, lumbar spine and cervical spine.

…

He is a heavy smoker, smoking 60 cigarettes per day.

…

SEXUAL PROBLEMS

… he states that he sustained an injury to his penis as a result of being attacked by his assailants. …

He does get erections of the penis but they are not as good as before the accident and there is some bending of the penis on erection, which he describes as a ‘broken penis’.

In his history Mr Fakhreddine stated that he had bleeding from the penis when he went to St George Hospital but he did not tell the doctors there. It took some weeks before he told his general practitioner who then referred him to Dr Simon Bariol, a Urologist at St George Private Hospital. He was then told that he would need an operation to improve his erections but this would result in shortening of his penis. He states that he had already paid $480.00 for seeing this urologist but was unable to afford any further treatment.

…

EXAMINATION

Mr Fakhreddine indicated that he had problems with a ‘broken penis’ but on examination there was no evidence of any abnormality in the penis or scrotum. The corpora cavernosa of the penis are intact and there is no evidence of induration along their length. …”

18. The Crown maintains that this material is relevant as follows. The Crown case is wholly circumstantial. Mr Lehmann was murdered shortly before he was due to leave his apartment to travel to the airport en route to Germany. He was wearing a money belt with a large sum in European currency and his suitcase was packed and locked. The Crown suggests that the inference is that Mr Fakhreddine is the taxi driver who Mr Lehmann had arranged to drive him to the airport. The evidence that has now been given by Mr Fakhreddine confirms this.

19. Shortly before his death, Mr Lehmann engaged in an act of fellatio with Mr Fakhreddine whose semen was left in his mouth. Mr Fakhreddine remained in the apartment at some time long enough to smoke eight cigarettes. His fingerprints made with blood and in blood are to be found on the statuette used to kill Mr Lehmann. The principal issue is who killed Mr Lehmann.

20. The Crown submitted that in considering whether Mr Fakhreddine had a motive for the murder which related to the sexual encounter between him and Mr Lehmann, it is open to infer that Mr Fakhreddine had formed some insecurity or self-loathing, presumably related to his "broken penis", which led him to commit an act of unrestrained violence. Moreover, the compensation documents reveal that Mr Fakhreddine's relationship with his wife had deteriorated, supporting on the Crown's submission the likelihood of a sexual relationship between Mr Fakhreddine and Mr Lehmann. In partial contradiction of that submission, the Crown submitted that it anticipated Mr Fakhreddine might say in evidence that he failed to report what he saw of the murder for fear that his wife would then discover that he had engaged in a sexual liaison with Mr Lehmann. Finally, the Crown says that the compensation documents are capable of supporting the existence of a financial motive for the killing of Mr Lehmann: they reveal that Mr Fakhreddine was saying that money was tight, that he was experiencing difficulties paying for things for his children, among others.

21. If I may say so with great respect, these analyses of what might or could have inspired Mr Fakhreddine to murder Mr Lehmann conflate a series of what amount to case theories with the existence of Mr Fakhreddine's possible motive for what occurred. It seems to me that a robbery motive, or its equivalent, being Mr Fakhreddine's actions in attempting to solve his alleged financial problems by stealing from Mr Lehmann, fails to take account of the fact that Mr Lehmann's money belt with 1,700 Euros and an untouched wallet in a prominent position in the apartment containing $250 were left untouched by Mr Lehmann's killer. The Crown has also suggested that Mr Fakhreddine's instructions to his lawyers to redeem his workers compensation entitlements only days after Mr Lehmann was killed, is evidence of his desperate need for money. However, it is equally consistent with a very ordinary decision taken by injured workers every day of the week to take a lump sum commutation in lieu of continued weekly payments as they are entitled to do. Moreover, Mr Fakhreddine presumably well understood long before February 2008 with respect to his workers compensation entitlements that he had the right to redeem his claim for a modest sum so that his immediate or potential financial position at that time would have been relatively secure.

22. That is not to say that the Crown may not wish in due course to refer to some representations that Mr Fakhreddine may have made in the documents in question. The permissible extent of such an approach must fall to be determined by reference to all such evidence as Mr Fakhreddine may give that enlivens the relevance of this material. However, the tender of Mr Fakhreddine's compensation and medical history in advance of the materialisation of some specific context, seems to me to be an unfairly broad public exploration of sensitive personal details that do not appear at this stage of the proceedings to have achieved any relevance.

23. The same can be said of the Crown's prognostication that the death of Mr Lehmann was triggered by an uncontrollable reaction to sexual humiliation or something similar. It is in my opinion unfairly prejudicial to receive Mr Lehmann's sensitive medical details at large, as revealed in the compensation documents, against the contingency that they might serve as a potential source for the rebuttal of the sexual humiliation theory when that possibility currently rises no higher than mere speculation.

24. The Crown contends that Mr Fakhreddine’s attendance at Mr Lehmann’s unit may well have been associated with a financial motive. The Crown submitted that Mr Fakhreddine's financial position in the years preceding Mr Lehmann's death is relevant to whether he could have had a financial reason to befriend him and then attend his apartment to see if there was money there which the deceased intended to take with him to Germany. Mr Lehmann had mentioned his trip and his Euros and traveller's cheques to several people.

25. That submission is said to draw strength from Mr Fakhreddine’s straitened financial circumstances. However, the material quoted above is not capable of supporting such a contention. The Crown seeks to characterise what appears to me to be an unexceptionable set of circumstances, related by Mr Fakhreddine to lawyers and medical practitioners, that say nothing about the development of a possible motive to kill Mr Lehmann. The slender probative value of this material is significantly outweighed by the danger that the jury might somehow generalise that Mr Fakhreddine was making a bizarre and possibly suspect claim for compensation, with the risk that an illegitimate and irrelevant stereotypical opinion of him might be formed.

Statement of Mr Faaatuatu

26. Vaituolo Faaatuatu gave a statement to the police in February 2008. Mr Faaatuatu met Mr Lehmann in September 2007 at the Crocodile Hotel and they had engaged in a couple of sexual encounters thereafter. Mr Lehmann invited Mr Faaatuatu back to his unit at Ashfield for that purpose.

27. Mr Faaatuatu is now dead, so that any representations made to him by Mr Lehmann to which Mr Faaatuatu’s statement refers are technically inadmissible. However, that fact has in my opinion to yield to the reality that the evidence that Mr Faaatuatu would himself have been able to give if he were alive, to the effect that Mr Lehmann regularly engaged in sexual activity at his unit with men he would meet in clubs and pubs, has already been given by several other witnesses. Nothing in Mr Faaatuatu’s statement is new or controversial. With the exception of the following extracts from the statement, the Crown’s technically correct objection to this evidence being adduced seems to me to be a triumph of form over substance:

“…and told me it was from Bernie although I didn’t know his name at the time”

“He asked me how my night was going”

“He then asked me who I was with, what I was up to, who I was going home with tonight”

“Bernie replied that he doesn’t normally bring people back home from the pub and that I was the first”

“I was telling Bernie that he should be more careful who he brings back to his place from the pub or bars”

28. Subject to those sentences, which I have rejected, the statement of Mr Faaatuatu may be adduced in evidence.

**********

Decision last updated: 21 March 2025