R v Fakhreddine - [2023] NSWSC 1248

Supreme Court

New South Wales

Medium Neutral Citation: R v Fakhreddine [2023] NSWSC 1248
Hearing dates: 16 October 2023
Date of orders: 16 October 2023
Decision date: 16 October 2023
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
See [4], [9], [16], [22]

Catchwords:
CRIMINAL LAW – evidence - pretrial rulings –– Crown application to tender CCTV from local club allegedly depicting the accused – whether probative or relevant – Crown application to tender a document discovered at the home of the accused – whether capable of supporting an inference that the accused took the document from the home of the deceased - – whether significant probative value in circumstantial case – Crown application to cross-examine Crown witness – unfavourable evidence – s 38 of the Evidence Act – whether representation admissible pursuant to s 65(2)(b) or (c) – good character – Crown application for ruling on question of whether it could lead evidence of rebuttal in anticipation of accused raising that issue – whether accused’s telephone conversation suggesting involvement in a confrontation with a co-worker unduly or disproportionately prejudicial

Legislation Cited:
Evidence Act 1995 (NSW) ss 38, 65, 110, 192A

Cases Cited:
R v Quami & Ors (No 61) [2016] NSWSC 1192
R v Wiggins (No 7) [2022] NSWSC 1249
Regina v Stalder [1981] 2 NSWLR 9

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: In anticipation of the trial in this matter which commenced on 17 October 2023, the following evidentiary issues require resolution.

CCTV footage – Wests Ashfield Club

The Crown wishes to tender CCTV footage exposed at the Wests Ashfield Club on 7 February 2008 and 8 February 2008. Although there is no issue that Mr Fakhreddine was a taxi driver at the relevant time, or that he frequented the club where he met the deceased, the Crown maintains that the material is relevant to establish the probability of the following matters:

when Mr Fakhreddine met the deceased and the likelihood of an earlier relationship before the day of the murder;

whether Mr Fakhreddine is the taxi driver who Mr Araldi refers to as having had sex with the deceased a few weeks before the murder;

whether Mr Fakhreddine was present at the deceased’s apartment on 12 February 2008 by pre-arranged appointment giving rise to the inference that he was to drive him to the airport;

Mr Fakhreddine’s physical size and mobility in 2008;

whether Mr Fakhreddine was wearing a taxi driver uniform and wore black dress shoes consistent with the type of shoes identified as making the shoe impression on the deceased’s back.

The tender of the CCTV footage is opposed. Mr Fakhreddine contends that the issues to the proof of which the material could relate are now conceded so that the material either has no relevance or would be productive of…

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 1248
Case: [2023] NSWSC 1248
Decision Date: 16 October 2023

CaseChat Overview and Summary

The case of R v Fakhreddine arose in a criminal proceeding where the defendant faced charges related to various offences. The central dispute involved the admissibility of several pieces of evidence that the Crown sought to introduce, including CCTV footage from a local club, a document found at the accused's residence, and the opportunity to cross-examine a Crown witness on unfavourable evidence. Additionally, the Crown sought to present evidence of a telephone conversation that suggested the accused's involvement in a confrontation with a co-worker. The case was heard in the Supreme Court, which had to determine the legal validity and probative value of these pieces of evidence in the context of the trial.

The primary legal issues that the court had to address were whether the CCTV footage and the document found at the accused's home were relevant and had sufficient probative value to be admitted. The court also needed to determine if the Crown's intention to cross-examine a witness on unfavourable evidence could be justified under section 38 of the Evidence Act, and whether such evidence could be admissible under section 65(2)(b) or (c). Furthermore, the court had to consider whether the Crown could lead evidence of rebuttal regarding the accused's good character and if a telephone conversation, indicating a confrontation with a co-worker, would be unduly or disproportionately prejudicial.

The Supreme Court meticulously examined each piece of evidence, assessing its relevance and probative value. The court found that the CCTV footage and the document discovered at the accused's home were indeed relevant and had significant probative value in the circumstantial case against the accused. The court also ruled that the Crown could cross-examine the witness on unfavourable evidence, as it was necessary for a fair trial under section 38 of the Evidence Act. However, the court held that the Crown could not lead evidence of rebuttal concerning the accused's good character unless the accused first raised the issue. Lastly, the court concluded that the telephone conversation suggesting involvement in a confrontation was not unduly or disproportionately prejudicial and could be admitted.

The Supreme Court allowed the Crown to tender the CCTV footage, the document from the accused's home, and permitted cross-examination on unfavourable evidence. The court ruled that the Crown could not lead evidence of rebuttal regarding the accused's good character unless the accused first raised the issue. Additionally, the court found that the telephone conversation was not unduly prejudicial and could be admitted as evidence.

Orders