Citation: R v Fakhreddine [2023] NSWSC 1112
Court: Supreme Court of New South Wales
Date: 14 September 2023
Judge(s): Harrison J
Background
The accused faced a murder trial scheduled to commence on 3 October 2023, arising from events that occurred on 12 February 2008. By notice of motion dated 11 September 2023, he applied to vacate the trial date. The application was supported by an affidavit from his solicitor.
The basis for the application was that the accused had not yet retained forensic experts in DNA analysis, fingerprints, and blood spatter to assist the defence in challenging the Crown's expert evidence. It was submitted that without such defence experts, the accused would be unable to cross-examine the Crown's specialists effectively and risked an unfair trial. The funding to retain those experts and to pay lawyers had not yet been secured.
The Crown relied on its own affidavit in response and opposed the application. The Crown's forensic case included DNA evidence placing the accused at the deceased's apartment, fingerprints in the deceased's blood on the murder weapon, DNA from cigarette butts, and semen evidence. The accused had originally been identified through a familial DNA match.
Legal Issues
- Whether the trial date should be vacated to allow the accused to retain forensic expert witnesses and raise funds for legal representation
- Whether the circumstances advanced by the accused amounted to unforeseen events or matters beyond his control justifying an adjournment
- Whether proceeding to trial without defence forensic experts would result in an unfair trial
Decision
Issue 1: Failure to act in a timely manner
The court found that the accused and his lawyers ought to have obtained expert reports and organised funding for them well before the application was made (at [6]). Counsel for the accused conceded as much, and no material was put forward identifying unforeseen events or circumstances beyond the control of the accused or his legal representatives (at [6]). The court noted that all relevant issues had been apparent for years, and the application was filed less than three weeks before the trial was due to begin (at [6]).
Issue 2: No concrete forensic disadvantage identified
The court rejected the submission that the accused would be prejudiced by proceeding to trial without defence forensic experts (at [9]). The accused had not identified, even in general terms, any actual or reasonably likely deficiency in the Crown's forensic evidence. The contention that problems might emerge only after experts were retained was characterised as theoretical and hypothetical (at [9]). The court also observed that the circumstantial Crown case, including evidence placing the accused at the apartment, made it difficult to conceptualise the forensic disadvantage the adjournment was meant to cure (at [9]).
Issue 3: Financial circumstances and funding
The accused was in full-time employment and was not eligible for Legal Aid (at [10]). His adult children had been identified as potential contributors to funding, but no material indicated any willingness on their part to do so, nor explained why they had not already done so (at [10]). The suggestion that the children would need nine to twelve months to raise funds for lawyers did not, of itself, establish that the accused would be unrepresented at trial (at [10]).
Issue 4: Fair trial interests versus delay
The court acknowledged that the accused's right to a fair trial would prevail over the mere desire to avoid further delay, if that were the only competing consideration (at [11]). However, the court was not satisfied that proceeding to trial would produce corresponding unfairness to the accused, particularly given the long delay since the alleged offence and the absence of any identified forensic issue (at [11]-[12]). The application was characterised as entirely without merit (at [12]).
Orders Made
- Application to vacate the trial refused
- Trial date of 3 October 2023 confirmed
Key Takeaways
- Refusing the application, the Supreme Court held that a failure to obtain expert forensic evidence or secure funding, where all relevant issues had been known for years and no unforeseen circumstances were established, does not justify vacating a trial date (at [6]).
- A theoretical or hypothetical concern that the opposing party's expert evidence might later be shown to be flawed is insufficient to establish that proceeding to trial would cause an unfair trial; the applicant must identify at least some concrete or general basis for suggesting the experts are wrong (at [9]).
- Where an accused is in full-time employment and ineligible for Legal Aid, unsubstantiated references to family members as potential sources of funding carry little weight without evidence of their willingness or capacity to contribute (at [10]).
- The right to a fair trial takes precedence over the general interest in avoiding further delay, but an applicant must establish that the trial, as proposed, would actually produce unfairness rather than assert it on a speculative basis (at [11]).
- Applications to vacate trial dates filed shortly before the scheduled hearing face significant hurdles where the circumstances underpinning them have been foreseeable and within the parties' control for an extended period (at [6], [12]).
Legislation and Cases Referenced
Legislation
- Legal Aid Commission Act 1979 (NSW) s 35
Cases
- Not stated