R v Fakhreddine
[2023] NSWSC 1325
•30 October 2023
Supreme Court
New South Wales
Medium Neutral Citation: R v Fakhreddine [2023] NSWSC 1325 Hearing dates: 30 October 2023 Date of orders: 30 October 2023 Decision date: 30 October 2023 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Paragraphs [8] and [9] of Ms Jofre’s statement admitted
Catchwords: CRIMINAL LAW – murder – evidence – witness statement – observations about the deceased potentially in the form of opinion or based on speculation – nature of how lay witnesses recount matters and way in which they are transcribed
Legislation Cited: Evidence Act 1995 (NSW) s 38
Category: Procedural rulings Parties: Rex (Crown)
Naji Fakhreddine (Accused)Representation: Counsel:
Solicitors:
S Traynor (Crown)
J Ellis (Accused)
Office of the Director of Public Prosecutions (Crown)
One Group Legal (Accused)
File Number(s): 2021/75628 Publication restriction: Nil
EX TEMPORE jUDGMENT
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HIS HONOUR: I have been provided with a statement of Alejandrina Jofre given by her to the police on 15 February 2008 in relation to the death of Bernd Lehmann. The statement is in nine numbered paragraphs. With the exception of a portion of para 8 and the bulk of para 9, the Crown does not object to Ms Jofre's evidence being given either by calling her or by reading so much of the statement to which it does not object.
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Ms Ellis for the accused, on the contrary, wishes to rely upon paras 8 and 9 in full.
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In order that the dispute may be understood, I will set out paras 8 and 9 of Ms Jofre's statement:
“8. A couple of weeks ago it was raining and the man leant me an umbrella. I had the umbrella for about maybe two weeks. I can't remember exactly. I returned the umbrella on a Friday. I cannot remember if it was Friday last week or the week before. I remember it was a Friday because on this day I went to see a lady called Domi at her home where I prayed the rosary with her. I returned the umbrella about the middle of the day. I knocked on the front door but the man did not open this door. I could hear the voices of two men talking inside. I think this was near the kitchen as I could hear noise being made there like someone was chopping something in the kitchen.
9. The man opened the back door to his unit. The door opened onto the car park. I thought this was strange. The man walked outside to the garage. I had to walk to the man to give him back the umbrella. He has this look that he wasn't going to move. It was like he was keeping away from the unit. There was something not right with the man. Before he was friendly, this time he was surprised and appeared nervous. The man was not very polite. He was nervous when he spoke, he would not come near me, he stood away from me and spoke. I talk to him but he make no reply. He was different to every other time I spoke with him. I returned the umbrella. This was the last time I saw the man.”
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The last sentence of paragraph 8 is effectively not pressed by Ms Ellis and I need not refer to it in any more detail.
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The burden of the Crown's objection to the bulk of para 9 proceeds upon the basis that Ms Jofre is describing an interaction with Mr Lehmann in which some of the matters to which she refers are expressed as opinions, or possibly opinions based upon supposition or speculation. For example, one sentence of paragraph 9 reads, "He has this look that he wasn't going to move". The following sentence reads, "It was like he was keeping away from the unit". And, perhaps finally, the next sentence reads, "There was something not right with the man". Other sentences such as, "Before he was friendly, this time he was surprised and appeared nervous" would not appear to be objectionable or at least not objectionable in the way in which the Crown contends the three preceding sentences are objectionable.
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As a matter of technical evidence, it seems to me that the Crown's concern may well be well-founded. I hasten to add, however, that it is in the nature of observations made by people, and in particular the way in which they are transcribed in police statements following the event, that the wording of opinions such as these is often in a form that potentially offends rules against opinion evidence or are opinions that themselves appear speculative and unfounded.
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Doing the best I can, it seems to me that this evidence, to whatever issue it may go, is evidence that the accused wishes to have led. It does not seem to me that the reception of para 8, or in particular para 9, would significantly adversely affect the Crown case, but to the extent that there may be some concern that the expression of apparently unbased or unfounded opinions by Ms Jofre might amount to unfavourable evidence, I would be inclined, should the Crown so apply, to permit it to cross-examine Ms Jofre pursuant to s 38 of the Evidence Act 1995 if so advised.
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The burden of the Crown's objection to the whole of the evidence is that it is also potentially of no relevance. My general approach to matters touching relevance is that unless there is some fundamental evidentiary or procedural objection to it being received, I am content to admit it so that the question of its relevance or otherwise can be dealt with in the course of addressing the jury when the evidence is completed.
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Decision last updated: 21 March 2025
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