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Supreme Court 16 October 2023

R v Fakhreddine

[2023] NSWSC 1248

Homicide
CRIMINAL LAW EVIDENCE PRETRIAL RULINGS WHETHER PROBATIVE OR RELEVANT C ROWN APPLICATION TO CROSS EXAMINE CROWN WITNESS

Citation: R v Fakhreddine [2023] NSWSC 1248
Court: Supreme Court of New South Wales
Date: 16 October 2023
Judge: Harrison J

Background

The accused was charged with the murder of a man who died in February 2008 in Ashfield, New South Wales. The deceased had been due to fly to Germany on the day he was killed. The accused was a taxi driver at the relevant time and had connections to the club where the deceased was known to spend time.

The matter came before Harrison J on the eve of trial for resolution of several contested evidentiary issues. Each ruling concerned whether particular pieces of evidence could be led at trial, either by the Crown or in anticipation of the defence raising good character.

  • Whether CCTV footage from a local club depicting the accused was relevant and admissible.
  • Whether a German street directory found at the accused's home more than 13 years after the murder was capable of supporting a circumstantial inference linking the accused to the deceased's apartment.
  • Whether leave should be granted under s 38 of the Evidence Act 1995 (NSW) to cross-examine a Crown witness as unfavourable, and whether that witness's prior representation was admissible under s 65(2)(b) or (c).
  • Whether the Crown could lead rebuttal evidence of a telephone intercept, in which the accused described an altercation with another man, if the accused chose to raise good character under s 110 of the Evidence Act 1995 (NSW).

Decision

CCTV footage: Harrison J admitted the footage. The fact that the accused had conceded certain matters, such as being a taxi driver in February 2008, did not oblige the Crown to limit its case accordingly. The footage formed part of a broader matrix of circumstances, including the accused's appearance in a taxi driver uniform and the type of shoes he was wearing, and was neither unfairly prejudicial nor attended by any other discretionary ground for exclusion.

German street directory: The court admitted the directory as circumstantial evidence. A plastic bag containing the German-language street directory of Potsdam, published around 1991 to 1992, was found at the accused's home when he was arrested in 2021. The accused had no known connection to Germany and did not speak German, while the deceased had emigrated from East Germany and had returned to visit around the time the directory was published. Harrison J accepted that, taken with other evidence to be led at trial rather than in isolation, the directory was capable of supporting an inference that the accused had taken it from the deceased's home. The Crown's concession that no forensic link existed went to weight rather than admissibility.

Section 38 application (Marcello Araldi): The court granted the Crown leave to cross-examine Mr Araldi as an unfavourable witness under s 38. His evidence at committal, where he recalled only hearing the words "taxi driver" in a conversation between others, conflicted with a contemporaneous police record of an earlier interview in which he reported that the deceased had told him, approximately two weeks before the murder, about a sexual encounter with a taxi driver. Harrison J held that the prior representation was admissible under s 65(2)(b) or (c) of the Evidence Act 1995 (NSW) as a prior statement made when the events were fresh in the witness's memory and which he no longer fully recalled.

Good character rebuttal (telephone intercept): The Crown sought a pre-trial ruling that, if the accused raised good character, it could lead evidence of an intercepted telephone call in which the accused described hitting an older Iraqi man over an offensive WhatsApp post. Harrison J refused to admit this material. The incident was vague, considerably post-dated the murder, and it was unclear whether the accused had punched or merely slapped the man. The court found the potential for prejudice to be undue and disproportionate relative to the evidence's probative value on the character issue, applying the principles in Regina v Stalder [1981] 2 NSWLR 9.

Orders Made

• Evidence of the intercepted telephone call is not admitted
• The Crown is not permitted to lead evidence of the incident in rebuttal to challenge Mr Fakhreddine's good character

Key Takeaways

  • A defendant's concession of a particular fact does not prevent the Crown from leading independent evidence of that same fact as part of its overall circumstantial case.
  • Circumstantial evidence need not prove guilt standing alone to be admissible; it is sufficient that the item is capable of supporting an available inference when considered with other evidence to be led at trial.
  • Under s 38 of the Evidence Act 1995 (NSW), leave to cross-examine a Crown witness as unfavourable may be granted where the witness's trial evidence conflicts materially with a prior recorded account, and the prior representation may then be admissible under s 65(2)(b) or (c).
  • Where an accused intends to rely on good character under s 110 of the Evidence Act 1995 (NSW), the Crown's ability to lead rebuttal evidence is not unlimited. Harrison J held that a vague, post-offence incident of uncertain severity was too prejudicial relative to its probative value on the character issue to be admitted.
  • In assessing whether rebuttal character evidence is admissible, courts will weigh the potential for disproportionate and unfair prejudice against the genuine probative significance of the proposed evidence on the specific character trait raised by the accused.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 38, 65, 110, 192A

Cases
- R v Quami & Ors (No 61) [2016] NSWSC 1192
- R v Wiggins (No 7) [2022] NSWSC 1249
- Regina v Stalder [1981] 2 NSWLR 9