R v Fakhreddine (No. 2)
[2024] NSWSC 1216
•27 September 2024
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Fakhreddine (No. 2) [2024] NSWSC 1216 Hearing dates: 11 September 2024 Date of orders: 11 September 2024 Decision date: 27 September 2024 Jurisdiction: Common Law Before: Lonergan J Decision: Pursuant to s 13 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the Court’s orders of 27 March 2024 relating to the non-publication of the accused’s evidence at his previous trial are revoked.
Catchwords: NON-PUBLICATION ORDERS – application to revoke – retrial – suppression orders made in March 2024 to protect potential jury panel from possible unbalanced media reports of accused’s evidence at last trial in the short period leading up to September 2024 trial date – very particular and recognisable facts – short term order only – order no longer necessary to prevent prejudice to the administration of justice
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases Cited: R v Fakhreddine [2024] NSWSC 320
Category: Procedural rulings Parties: Rex (Crown)
Naji Fakhreddine (Accused)Representation: Counsel:
S Traynor (Crown)
J Layani Ellis (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
One Group Legal (Accused)
File Number(s): 2024/00075628 Publication restriction: Consult the Non-publication Register for non-publication orders that apply to these proceedings.
JUDGMENT
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The accused is on trial before a jury and me for the murder of Bernd Lehmann on 12 February 2008. A trial before Harrison CJ at CL and a jury of 15 commenced on 17 October 2023. On 8, 10 and 13 November, days 14, 15 and 16 of the trial, the applicant gave evidence and was cross-examined. On 28 November 2023, the jury was discharged as a result of being unable to agree on a verdict.
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On 27 March 2024, this Court made orders pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”) prohibiting the publication, (subject to certain exceptions), of any evidence given by the accused in his previous trial. The order was to remain in place until verdict, further order of the Court, or 30 November 2024, whichever is earlier. The procedural history of the 27 March 2024 orders is set out in a judgment of that date: R v Fakhreddine [2024] NSWSC 320 (“Fakhreddine”) at [5] to [11].
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On 9 September 2024, a new trial commenced before me and a jury of 14. On 11 September 2024, after two days of evidence, counsel for the accused brought to the Court’s attention three media publications (with substantially the same content and authored by the same individual) that were said to contravene the Court’s 27 March 2024 orders.
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As a result of those articles being brought to the Court’s attention, the Crown made an oral application that the 27 March 2024 orders be revoked.
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For the reasons that follow, on 11 September 2024, I revoked my orders of 27 March 2024 relating to the non-publication of the accused’s evidence at the last trial.
Submissions of the parties
(i) Crown submissions
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The Crown noted that the purpose of the 27 March 2024 orders was, on the basis of the administration of justice, to protect the prospective jury pool. As a result, the balance between open justice and preventing prejudice to the proper administration of justice was struck. That reason has now passed.
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The Crown submitted that there is now no necessity for the order on the basis on which it was argued and deemed necessary at the time. It contended that in circumstances where there is no dispute that the accused’s evidence will be admitted as part of the Crown case, the 27 March 2024 orders could be set aside.
(ii) Accused’s submissions
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Counsel for the accused acknowledged the purpose of the 27 March 2024 orders being to protect any potential pool of jurors, however, she submitted that that risk remains, on the basis that there may be some future need to re-empanel a jury, and that prospective pool could then be exposed to the accused’s evidence at his previous trial.
Consideration
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I collated the relevant provisions and authorities for making a non-publication order in Fakhreddine at [28]-[31]. Essential to my consideration was the requirement of s 6 of the Act to take into account that a primary objective of the administration of justice is to satisfy the public interest in open justice.
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There is a requirement under s 12 of the Act to ensure that any order made operates for no longer than is reasonably necessary to achieve the purpose for which it is made.
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My reasons for making the orders on 27 March 2024 were directed at a very specific concern and purpose as set out at [37] and [38] of Fakhreddine:
“[37] The order is for a short period only, probably only five to six months, given that the order will be reconsidered, (and likely immediately revoked), upon the evidence in question being sought to be used in the retrial. However that will be at a time when the contents of that evidence can be duly managed and presented, with the jury likely already empanelled. The jury will be directed as to the way in which they should approach that material. That is very different to reading or hearing about a media story based on an interpretation, version or summary of the applicant’s evidence in the first trial in an unsupervised, undirected environment.
[38] I accept that directions will be made requiring jurors to put out of their minds any media reports about the case they are to decide. We must assume the jury will obey those directions. I acknowledge the fact that where there have been media reports, and even extensive media coverage, this does not invariably result in a delayed trial, successful application for judge alone trial or a concern that a jury or juror cannot bring an impartial mind to bear on the issues.”
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Section 13 of the Act provides for review of orders as follows:
13 Review of orders
(1) The court that made a suppression order or non-publication order may review the order on the court’s own initiative or on the application of a person who is entitled to apply for the review.
(2) Each of the following persons is entitled to apply for and to appear and be heard by the court on the review of an order under this section—
(a) the applicant for the order,
(b) a party to the proceedings in connection with which the order was made,
(c) the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,
(d) a news media organisation,
(e) any other person who, in the court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should have been made or should continue to operate.
(3) On a review, the court may confirm, vary or revoke the order and may in addition make any other order that the court may make under this Act.
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The jury in this current trial is aware that there was a previous trial, and that at that previous trial, the accused gave evidence. The Crown Prosecutor’s opening to the jury on 9 September 2024 included the following:
“… You will hear that there has been a previous trial and her Honour at some point will give you some directions about that.
In that trial, Mr Fakhreddine gave evidence. His evidence was not recorded and it will be read to you as part of the Crown case.
The reason the Crown leads the evidence in its case is because the Crown relies upon some of the things he says which clearly place him in the apartment at the time of the murder. However, it also relies upon things that he says as lies. It is the Crown case that the accused fabricated a version to try and account for the forensic evidence against him found at the scene. I am just going to tell you very briefly about that evidence.
His evidence was that he first met the deceased at the Wests Leagues Club not long before the murder and that the deceased gave him $20 to put in the poker machines if he would drive him home in a taxi. He had said the deceased on that occasion had followed him into a bathroom and looked at him at the urinal. He took him home in a taxi and went inside with him as the deceased offered to pay him if he came inside.
He said he went into the deceased's apartment and allowed the deceased to perform fellatio on him and then went home. He said he was paid $100 and they exchanged numbers and he left. He said he did not stay as he had never stayed away from home before.
The accused gave evidence that either late on the 11th or early hours of the 12th, being the day the deceased was due to depart, the deceased went to the Wests Leagues Club, found him, winked at him and the accused went home with him again.
He gave evidence that when he was at the apartment on this occasion that Mr Lehmann had offered him some marijuana to smoke as a joint and showed him a kilo or half a kilo of marijuana in a bag. He also said Mr Lehmann gave him a green substance, which he and the deceased both took, and which he understood would make him strong. He then went to the deceased's bedroom where he said the decease performed fellatio on him for some time and he ejaculated in his mouth. He said he went there with an expectation of money and said that he had later agreed to take the deceased to the airport. After the sexual encounter, he stayed the night in the spare room.
He gave evidence that when he woke, he could hear the deceased on the phone. The next thing he said was he heard the front door, a big slam, people running and a conversation with a man about $15,000 and where was it.
He said he heard a man and a woman's voice, he heard a big hit and someone fall down and a woman's voice swearing.
He said he did not call out or do anything but remained in the spare room. Although he had a mobile phone he did not use it and did not call out.
He later looked outside the bedroom door and said that he turned to his right and that he saw two men, one who had something covering his face and gloves and another with a mustache. He said he saw one man over the body.
Mr Fakhreddine gave evidence that the other man had the bag, which he had seen the marijuana in, and one of the men saw him and said to the other "Let's go".
The accused version was that he went back inside the spare room and the two men left. He remained there for 10 to 15 minutes and came out. He went to check on the deceased to see if he was still alive. His evidence was that he found the deceased face down with a plastic bag on his head.
He gave evidence that he took the plastic bag off Mr Lehmann's head and threw it somewhere but could not remember where. He said he turned the deceased's head to check if he was alive and, in doing so, his left hand went into the hole, meaning the wound at the back of Mr Lehmann's neck, and his left hand became covered in blood.
He then said he heard a noise from outside and picked up the statue which was on the other side of the body with his bloody left hand to use it as a weapon in case anyone came back. He then said he put it back down exactly where he found it. He shook his hands to remove the blood and washed them at the sink.
It is the Crown's case that that evidence was false and ultimately the Crown will invite you to find that what was said about three intruders committing what sounds like a home invasion and killing Mr Lehmann over drugs or money was untrue. Although the accused's evidence is that he did not kill Mr Lehmann, the Crown, at the end of the trial, will take you to the implausibility of that account and reasons why you would reject the accused's evidence that he did not kill Mr Lehmann.”
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The 27 March 2024 orders have served their purpose. The nature of the accused’s evidence in the last trial has been revealed in some detail in the opening, and in the next few weeks his evidence will be read to the jury as agreed between the parties. The proper course was to revoke the orders as they are no longer necessary to prevent prejudice to the proper administration of justice, and so the reason for them has evaporated.
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Amendments
25 February 2025 - Corrected formatting within Cover Sheet.
Decision last updated: 25 February 2025
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