R v Fakhreddine
[2023] NSWSC 1248
•16 October 2023
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:
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
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 an undue waste of court time.
-
I consider that the material is relevant and should be admitted. It will be obvious that the fact that Mr Fakhreddine may have conceded some matters to which the footage is directed, does not mean that the Crown is thereby constrained or limited by such concessions in the way in which it chooses to conduct its case. For example, as already noted, Mr Fakhreddine concedes that he was a taxi driver in February 2008. However, there is other evidence that the Crown expects to call about the deceased’s circle of friends and whether he may have had a sexual encounter with a taxi driver shortly before the murder. The importance of the visual representation of Mr Fakhreddine in the taxi driver uniform can easily be understood as part of the matrix of circumstances that the Crown wishes to emphasise. It is not suggested that the footage is unfairly prejudicial or that it is attended by some other allegedly disentitling characteristic upon the basis of which it should be excluded on discretionary grounds.
German/Berlin map/street directory
-
The deceased was due to fly to Germany on the day he was murdered. It had been his expressed intention to return to Germany to visit relatives in the country of his birth. Following his arrest in March 2021, a search was conducted of Mr Fakhreddine’s residence at 38 Bellevue Street, Arncliffe. On that occasion, police located a plastic bag containing what has been described as a map of Potsdam, near Berlin. It is written in German and is in the form of a street directory. The directory did not contain any relevant DNA material or fingerprints linking it to Mr Fakhreddine. There is no evidence to suggest that Mr Fakhreddine speaks German or has ever been to Germany. His first language is Lebanese.
-
The deceased emigrated to Australia from East Germany in the 1960s. He has returned to visit Germany on a number of occasions. The date of publication of the directory is 1991/1992, which is around the time that the deceased returned to Germany for the first time. The Crown maintains that the directory is a piece of circumstantial evidence that tends to support the probability that it was Mr Fakhreddine who took it from the deceased’s apartment at some time, and that it is unlikely it would have been taken on an occasion other than the day that the deceased was killed.
-
As with almost any piece of circumstantial evidence, the facts that Mr Fakhreddine was found in possession of a street directory for an East German location, written in German and published in 1991 or 1992 when the deceased previously visited the country, from which he had earlier emigrated, when German is not Mr Fakhreddine’s first language and where it appears he has never been to Germany, are matters that do not, standing alone, prove that he murdered the deceased. However, the Crown maintains that these facts, together with other facts to be established in the trial, taken as a whole and not in a piecemeal fashion, are capable of supporting an inference that Mr Fakhreddine took the directory from the deceased’s home.
-
The Crown emphasises that there can be no unfairness in the reception of this evidence as the Crown will otherwise lead evidence that the directory could not be forensically linked to Mr Fakhreddine: the Crown relies only upon the inference that it is likely to have come from the deceased’s home.
-
I consider that the directory is capable of supporting the inference upon which the Crown proposes to rely and that it should be admitted.
Evidence of Marcello Araldi – s 38 application
-
Marcello Araldi provided the police with statements on 8 March 2008, 17 April 2008 and 2 March 2020. At the committal proceedings in the Local Court on 2 September 2022, the prosecutor sought, and was granted, leave to cross-examine him. That application was effectively triggered by a comparison of three things. The first was what Mr Araldi said in his 15 April 2021 statement at [8] as follows:
“Detective Ashburn asked me about a taxi driver that knew Bernd Lehmann. That rang a bell with me and I remember talking to Ilija [Vukovic] one time about a taxi driver while I was sitting with them. I don’t remember when this conversation took place, I don’t remember anything else that was said in the conversation. I don’t remember any other details about the taxi driver and I have not met the taxi driver.”
-
The second is what appears in the police statement of Detective Sergeant Nicholas Sedgwick dated 25 August 2021. The relevant portion of that statement is as follows:
“3. In February 2008 I became involved in the investigation into the murder of Bernd Lehmann in Ashfield. During this time, I assisted in a number of enquiries. One of the enquiries was a relationship between Lehmann and an unidentified taxi driver.
4. On 22 May 2008 Detective Bryan Downie and I met with Marcello Araldi at Redfern Police Station. Araldi was asked clarifying questions re certain issues, including a phone call made by him to Lehmann.
5. I made notes at the time in my day book and later that day entered a summary of the conversation onto the eagle I investigation system…
6. Araldi stated he had a previous conversation with Lehmann about some marijuana he had that he was going to share with someone else. He stated that the phone call on the 11 February 2008 was when he wished Bernd farewell, he stated at one point during the conversation Ilija got on the phone and had a brief conversation with him.
…
8. Araldi also stated he recalled Bernd mention a taxi driver that he had picked up. Bernd offered for the taxi driver to stay the night however they just had sex and the taxi driver left. Araldi stated Bernd told him this story about two weeks before he was killed. Araldi assumed that when Bernd told him this story it had only recently occurred.”
-
The third was what happened during the course of Mr Araldi’s evidence itself at the committal. The following extract from that evidence should be noted:
“Q. Mr Araldi, just staying with that last statement of 15 April 2021, at paragraph 8 of that statement you said that Detective Ashburn had asked about a taxi driver that knew Bernd Lehmann. That’s at page 2, paragraph 8 of the statement. Do you see that?
A. Yes.
Q. In the statement you said that rang a bell with you, and you remembered Bernd talking to Ilya. That’s Ilija Vukovic; correct?
A. Yes.
Q. ‘One time about a taxi driver while I was sitting with them.’ And by that do you mean that there was a conversation that took place between yourself, Ilija and Mr Lehmann?
A. No, the conversation was between Ilija and Bernd.
Q. Were you present at that conversation?
A. I was present, yes.
Q. I want to ask you some questions about what Bernd Lehmann said about the taxi driver. Okay?
A. Yes.
Q. When that conversation took place, what did Bernd say about the taxi driver?
A. I don’t know who said the words, all I heard was ‘taxi driver’. I don’t – I don’t recall or, I heard anything else besides those two words of taxi driver, then discussed transcribable).. and I don’t know which person had said it, I just – as I heard those two words.
Q. Do you recall when you heard that conversation, relative to the time that Mr Lehmann died, do you know?
A. No. It was that evening, I don’t know.
Q. Was it, in terms of relative to the time, are you able to – even if you can’t say whether it’s in days or weeks – are you able to give any proximity as to when that conversation took place in terms of the timing before he died?
A. ..(not transcribable).., no.
Q. You said before that you were present. Where was the conversation taking place?
A. In the lounge room.
Q. And the lounge room, where?
A. Of Bernd’s place. Of his – of his home.
Q. Was this the apartment at Alt Street?
A. Yes.
Q. When there was this conversation about the taxi driver, do you remember anything else that was discussed at that time?
A. I can’t remember anything else.
Q. Did you yourself know any taxi drivers that were friends with Bernd?
A. No.
Q. Do you recall meeting a Detective Brian Downey, and a Detective Nicholas Sedgwick at Redfern police station in 2008?
A. The second statement?
Q. No, this is in the second statement that you made, in 2008, was 17 April to the then officer-in-charge, which was a Detective Cipolla. Do you remember him?
A. Yes.
Q. And was that a statement that you made at the Ashfield police station, or at the Redfern police station?
A. I’m really confused about which one. The statement. I can’t really remember which one.
Q. Do you have any visual memory of a Detective Cipolla?
A. Not visually, no, I don’t.
Q. After you made the second statement in April 2008—
A. Right.
Q. – with Detective Cipolla, so that’s statement number 2 –
A. Can’t remember.
Q. Do you remember having phone conversations or face-to-face meetings with police again around that same time?
A. No, I can’t recall.
Q. Do you recall?
A. No.
Q. Do you remember anybody called Detective Nicholas Sedgwick?
A. ..(not transcribable).. I don’t remember him with that name.
Q. In paragraph 12 of your third statement, the one with Detective Ashburn?
A. Yes.
Q. You said, ‘Detective Ashburn talked to me about meeting police at Redfern police station in 2008 and talking about a taxi driver.’
A. Right.
Q. And then you said, ‘I don’t remember anything more than I have already told police about a taxi driver.’
A. Can you ask that question again, sorry?
Q. Yes. When Detective Ashburn asked you about meeting police at Redfern police station in 2008, and speaking about a taxi driver, did that inform you, or assist you to remember being at Redfern police station in 2008 and speaking about that topic?
A. No. I didn’t – I didn’t recall anything, and. What I said about the taxi driver’s all I knew. That – those words.
Q. Were you shown any notes by police about any meetings that took place between yourself and police in 2008 on that topic?
A. I can’t remember. I don’t know. I don’t think so.
Q. Do you remember generally, or at all, having further contact with the police in 2008 after you’d made your two police statements?
A. No. No.
Q. Do you remember any phone contact that you had with the police in the month after Bernd’s death?
A. Just the statements that I made.
PROSECUTOR: Your Honour, I have an application that I wish to make pursuant to s 38 and 192 of the Evidence Act.”
-
Section 65 of the Evidence Act is relevantly as follows:
65 Exception: criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation--
(a) was made under a duty to make that representation or to make representations of that kind, or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) was made in circumstances that make it highly probable that the representation is reliable …
-
Mr Araldi’s inability to recall the reference to what he told Detective Sedgwick about the fact that the deceased had mentioned a taxi driver who he had picked up and who he had offered to stay the night, and that they just had sex and the taxi driver left, clearly triggered the operation of s 38 of the Evidence Act: the evidence that Mr Araldi had given, which did not include these matters, was for that reason unfavourable to the Crown. Mr Araldi had also told Detective Sedgwick that the deceased told him these things about two weeks before he was killed. Mr Araldi had said he assumed that when the deceased told him this story it had only recently occurred.
-
The evidence in this trial and that to which my attention has otherwise been drawn and which might be expected to be given indicates that the deceased was a gay man who was in the habit of regularly engaging in casual sex with other men who he often met at local clubs that he frequented. The deceased often invited these men to his apartment for that purpose. Discussion of these encounters among his circle of male friends and acquaintances was commonplace. The prospect that the deceased spoke to Mr Araldi about one such encounter, in the circumstances just described, makes it in my opinion unlikely that the deceased’s representation to him was a fabrication. It was also made in circumstances that I consider make it highly probable that the representation is reliable, where the unselfconscious recounting of sexual experiences was unremarkable and unexceptional.
-
The Crown should be given leave to cross-examine Mr Araldi on this limited issue.
Rebuttal of good character
-
Mr Fakhreddine has no criminal record. The Crown anticipates that a submission will be made that he is therefore a person of prior good character. In those circumstances, the Crown has sought an advance ruling in accordance with s 192A of the Evidence Act 1995 that certain material can be led in order to rebut any such submission.
-
The material in question consists of a transcript of a legally intercepted and recorded telephone conversation between Mr Fakhreddine and his son on 12 December 2020. It emerges from this conversation that Mr Fakhreddine either slapped or punched an 86 year old Iraqi man with whom it appears he had some kind of altercation. The altercation apparently erupted as the result of things that were posted on a WhatsApp group. Part of what Mr Fakhreddine is recorded as saying is as follows:
“Because he pissed me off in front of everyone. And he tried to have a fight with me and he started to swear and so on. I said to him, ‘Stop swearing and so on, just come here and I want to find out who is the bastard.’ I took off my jacket and charged at him, I punched him but I didn’t want to hit his head because Hussein was standing between us, so I just touched, passed it by his face.
…
Then he just went quiet. Then Hussein Mohammad got involved, and said to me, ‘That’s it. He deserved that slap. But that’s it we need to end it here’. I said to him, ‘Yes, I sympathise with him, but if he says one wrong word or one wrong look towards me, then you will have to accept that there will be trouble.’ He said to me, ‘No he will not look towards you at all.’ And since that day, I don’t speak to him and he doesn’t speak to me. I tried to make peace but he didn’t want to. But the other day, his delivery was stuck and they all got stuck and they went to the tipper. Then comes to the box and it’s two o’clock at night. He comes to the box at twelve and then he would try to push the others and didn’t know how to take them out. It’s all stuck the whole delivery is stuck. They were all stacked and stuck and he would raise the tipper and try to push them, he would go forward a bit and then go backward. So I went down there and I thought to myself, ‘Uh well if he says one word, then he will get bashed right next to the delivery’. I said to him, ‘Get in the truck’ and that’s it without saying hello or anything. I said to him, ‘Get in the truck’.”
-
Section 110(2) and (3) of the Evidence Act provides:
(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character.
(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.
-
In the present case, Mr Fakhreddine has indicated that he intends to raise character generally or in a particular respect, presumably that he is not a person prone to acts of violence.
-
The Crown submitted that if Mr Fakhreddine wishes to raise good character, either generally or in a particular respect, that he is a person who has no convictions and is therefore not a person likely to commit an act of violence, it should be permitted to lead in rebuttal in its case the evidence of the telephone call in which Mr Fakhreddine admits hitting an older Iraqi man who had caused him some offence by posting something on a WhatsApp group.
-
In my view, this material should not be admitted.
-
I am not satisfied that the incident described in the intercepted conversation says anything of substance about Mr Fakhreddine, let alone anything about his character in either general or specific respects. It would appear that he became upset about what had been published by the Iraqi gentleman. The precise terms of the publication are not known. There is also some doubt about whether Mr Fakhreddine punched or slapped the man, a doubt that cannot be resolved by me. It does not in these circumstances seem to me to be appropriate for the Crown to be permitted to attempt to impugn Mr Fakhreddine’s otherwise unblemished record by reference to a vague incident that considerably post-dated the murder and which was relatively insignificant in the scheme of things.
-
I note that I have been helpfully taken to the observations of Natalie Adams J in R v Wiggins (No 7) [2022] NSWSC 1249 at [61]-[68] and of Hamill J in R v Quami & Ors (No 61) [2016] NSWSC 1192 at [6] and [23]. I am conscious of the competing considerations that those decisions eloquently explore. However, the material in the transcript is a scant and potentially enigmatic artefact of Mr Fakhreddine’s life and as such has the troublesome potential disproportionately and therefore unfairly to undermine his proposed reliance upon an otherwise unblemished past. I consider that there is an undoubted potential for prejudice to Mr Fakhreddine which would be undue and disproportionate, having regard to the probative significance of the transcript upon the issue of good character: see, for example, Regina v Stalder [1981] 2 NSWLR 9 at 20.
**********
Decision last updated: 21 March 2025
0
2
1