R v Fakhreddine (No. 2) - [2024] NSWSC 1216

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

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.
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].
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.
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.
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

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 (No. 2)

Details

AGLC: R v Fakhreddine (No. 2) [2024] NSWSC 1216
Case: [2024] NSWSC 1216
Decision Date: 27 September 2024

CaseChat Overview and Summary

The matter before the court involved an application by the Crown to revoke previously made suppression orders in the case of R v Fakhreddine. These orders were designed to prevent the publication of specific information about the accused's evidence from his previous trial to avoid influencing the potential jury panel in the upcoming retrial. The suppression orders were initially made in March 2024 and were set to remain in place until the trial date in September 2024. The court was tasked with determining whether the suppression orders were still necessary to ensure a fair trial.

The primary legal issue the court had to address was whether the suppression orders were still required to prevent prejudice to the administration of justice, given the short period between the time the orders were made and the trial date. The court needed to weigh the need for a fair trial against the public interest in open justice and the right to freedom of expression. The court also had to consider the very particular and recognisable facts of the case, which could potentially lead to significant media attention and the risk of prejudice to the accused if the orders were not revoked.

The court concluded that the suppression orders were no longer necessary to prevent prejudice to the administration of justice. It found that the short period between the making of the orders and the trial date, coupled with the recognisable nature of the facts, meant that the risk of prejudice had diminished. The court emphasised that the orders were intended to be temporary and were only necessary for a limited period to ensure a fair trial. Given the passage of time and the likelihood that the potential jury members had already been exposed to media reports, the court decided that the suppression orders should be revoked. The court ordered the immediate revocation of the suppression orders, allowing for the freedom of the press to report on the case without restriction.

The final orders of the court were that the suppression orders made in March 2024 be revoked with immediate effect. This decision allowed for the media to report on the case without any restrictions, ensuring that the principles of open justice and freedom of expression were upheld. The court recognised the importance of a fair trial but also balanced this against the public's right to be informed.

Orders