Regina v Raad Fajloun and Mikel Fajloun

[2007] NSWDC 367

CITATION:	Regina v Raad Fajloun and Mikel Fajloun [2007] NSWDC 367
JUDGMENT DATE:	12 November 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Objection under s18 of the Evidence Act 1995 overrruled.
CATCHWORDS:	Criminal law - Trial - Voire dire judgment - Witness objects to giving evidence for the prosecution - Witness related to both accused
LEGISLATION CITED:	s18 Evidence Act 1995
PARTIES:	Regina Raad Fajloun Mikel Fajloun
FILE NUMBER(S):	06/21/0248; 06/21/0247
COUNSEL:	Ms Herbert for the Crown Dr Webb for Raad Fajloun Mr Watson for Mikel Fajloun
SOLICITORS:	Ms Irvin for the NSW DPP Mr Simone for Raad Fajloun

JUDGMENT
1. The prosecution proposes to call Issa Fajloun. Issa Fajloun is a 20 year old young man. He is the son of one of the accused Raad Fajloun.

2. After I explained the effect of s18 of the Evidence Act 1995 to Mr Issa Fajloun he objected to giving evidence as a witness for the prosecution pursuant to s18(2).

3. I have heard evidence from him of matters relevant to the conclusions referred to in s18(6). The factors referred to in subs 7 have all been touched upon.

4. Briefly I take into account the following matters. Mr Raad Fajloun is charged with two very serious offences and one significant offence. He is charged with breaking and entering and committing a serious indictable offence and kidnapping. In addition he is charged with assault occasioning actual bodily harm.

5. The evidence which Mr Issa Fajloun can give is of some importance. He is able to give evidence about a telephone call received in the early morning of the day of the alleged crime. He identifies the caller as his father. Other evidence will identify the phone from which the call was made to Issa Fajloun as that of Mr Mikel Fajloun, the co-accused. It is therefore significant circumstantial evidence placing the two accused together within an hour of the alleged offences, or at least the first of the alleged offences which occurred at around 7 am.

6. Although Mr Issa Fajloun has admitted in his latest statement dated 18 May 2007 (which became Exhibit VDH on the voir dire) to lying, none of counsel at the Bar table presently propose to cross-examine him to the effect that his evidence will therefore have less weight. There is, I am told by Ms Herbert for the prosecution, no other evidence available to her which would substitute for Mr Issa Fajloun’s evidence. Mr Issa Fajloun said that the fact that he gave evidence would not have any damaging affect on the relationship he has with his father. It may, he acknowledged, offend his younger brothers, both aged respectively ten and sixteen. Nor would any evidence which he gave involve disclosing any secrets or confidences given to him by his father. There is no evidence of any harm which would be occasioned to Mr Issa Fajloun if he had to give the evidence.

7. This prosecution is for two serious alleged crimes. It is obviously desirable that the jury should have before it all of the available evidence touching upon the guilt or innocence of both accused. Mr Issa Fajloun’s proposed evidence is a significant piece of evidence so far as the prosecution is concerned. The evidence from Issa Fajloun discloses little or no harm to him or to the relationship between him and his father if he were to give the evidence.

8. I therefore conclude that the desirability of Mr Issa Fajloun giving evidence outweighs the nature and extent of any harm which may be occasioned by him giving evidence. I therefore propose to overrule the objection which he made under s 18 of the Evidence Act .

oOo