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Supreme Court 1 November 2023

R v Fakhreddine

[2023] NSWSC 1324

Homicide
CRIMINAL LAW MURDER EVIDENCE NOTE RELIED ON BY ACCUSED FOR NON

Citation: R v Fakhreddine [2023] NSWSC 1324
Court: Supreme Court of New South Wales
Date: 1 November 2023
Judge: Harrison J

Background

The accused stood trial charged with the murder of a gay man killed in Ashfield in February 2008. The deceased regularly met casual male sexual partners at clubs and brought them back to his apartment. The accused was not arrested until March 2021, more than thirteen years after the death.

Shortly before the arrest, police had offered a $1 million reward for information. In response, an anonymous tip was received by Crime Stoppers in February 2021 describing a man matching the deceased's description arguing with a transgender female sex worker near Alt Street, Ashfield, apparently over money. A detective then recorded this in an investigator's note.

Counsel for the accused sought to cross-examine the detective on that note and tender it into evidence. The Crown objected. Harrison J was required to rule on whether the note was admissible.

  • Whether the investigator's note was admissible for a non-hearsay purpose, specifically to show that police received reports they were unable to pursue, rather than to prove the truth of the report's contents
  • Whether, even if technically admissible for a non-hearsay purpose, the note should be excluded under section 135 of the Evidence Act 1995 (NSW) because its probative value was substantially outweighed by the danger of unfair prejudice, misleading or confusing the jury, or undue waste of time

Decision

Harrison J accepted that the note could not be admitted for a hearsay purpose. Section 69(3)(b) of the Evidence Act 1995 removes the business records exception where a representation was made in connection with an investigation relating or leading to a criminal proceeding, which plainly applied here.

The defence position was that the note was sought only for the non-hearsay purpose of demonstrating that police received reports they could not verify or pursue further. Harrison J acknowledged this was a legitimate forensic point in a wholly circumstantial case, where the Crown bears the burden of excluding reasonable hypotheses consistent with the accused's innocence. However, his Honour noted that this general point could be made by questioning the detective without tendering the specific contents of the note at all.

Harrison J then turned to section 135. The Crown's concern was that the jury, having heard the specific contents of the report, might reason improperly that an unidentified transgender sex worker could have been responsible for the death. His Honour found that concern was well-founded. The deceased had no known interest in transgender partners or sex workers, the report was anonymous and unverifiable, the description of the putative sex worker was vague to the point of being worthless, and the date of the observed incident was imprecise.

Critically, the accused had already conceded being present at the apartment on the day of the murder and indicated he would give evidence about being present when the murder occurred. It followed that the defence case was not, and could not rationally be, that a transgender sex worker committed the offence. Admitting the specific terms of the note therefore carried a real risk of misleading or confusing the jury with a hypothesis that even the accused was not advancing. Harrison J excluded the note and limited cross-examination of the detective to the general proposition that police received reports they were unable to verify.

Orders Made

No formal orders were recorded in the provided text. Harrison J ruled that:
- The investigator's note was not to be admitted into evidence
- Cross-examination of the detective was limited to the general proposition that police received reports that could not be further verified or pursued, without reference to the specific contents of the note

Key Takeaways

  • Under section 69(3)(b) of the Evidence Act 1995, the business records exception to the hearsay rule does not apply to representations made in connection with a criminal investigation, regardless of whether those representations were created as a formal police record.

  • A non-hearsay purpose can, in principle, justify tendering a document that would otherwise be inadmissible for its truth, but the section 135 discretion to exclude remains available where the specific contents of the document carry disproportionate prejudicial or misleading potential.

  • The accused's own concessions and anticipated evidence can inform the section 135 balancing exercise. Where the defence case effectively forecloses a hypothesis that the tendered document might otherwise suggest to a jury, the risk of confusion or illegitimate reasoning is heightened.

  • Where a legitimate forensic point can be made through general questioning of a witness, admission of the specific document generating that point may be refused as unnecessary as well as prejudicial.

  • In a wholly circumstantial murder trial, the Crown's obligation to exclude reasonable hypotheses consistent with innocence extends only to hypotheses with some evidential foundation, not to theoretical or speculative possibilities unsupported by the evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 69 (business records exception to the hearsay rule)
- Evidence Act 1995 (NSW), s 135 (general discretion to exclude evidence)

Cases: No cases were cited in the judgment.