Citation: R v Fakhreddine [2023] NSWSC 1325
Court: Supreme Court of New South Wales
Date: 30 October 2023
Judge: Harrison J
Background
This decision arose in a murder trial concerning the death of Bernd Lehmann. The Crown called a witness, a neighbour of the deceased, who had given a police statement in 2008 describing her last interaction with the deceased shortly before his death.
The witness had returned an umbrella she had borrowed from the deceased. Her statement described his demeanour during that encounter in terms that the Crown argued strayed from factual observation into opinion or speculation.
The defence sought to rely on the full content of the witness's statement, including the portions the Crown sought to exclude.
Legal Issues
- Whether certain sentences in the witness's statement constituted inadmissible opinion evidence or speculation, rather than factual observation
- Whether the disputed portions of the statement were relevant to the issues in the trial
- Whether the Crown could cross-examine its own witness under s 38 of the Evidence Act 1995 (NSW) if the disputed evidence was admitted
Decision
Harrison J acknowledged that the Crown's concern about certain sentences in paragraph 9 of the statement was technically well-founded. Phrases such as "He has this look that he wasn't going to move," "It was like he was keeping away from the unit," and "There was something not right with the man" could be characterised as opinions, or as opinions that appeared speculative or unfounded.
However, his Honour noted that this kind of language is a natural feature of how lay witnesses recount their observations, and reflects the way police statements are transcribed after the event. The fact that a description takes an opinion-like form does not automatically render it inadmissible in all circumstances.
His Honour observed that the evidence was sought to be led by the accused, not the Crown, and that admitting it would not significantly damage the Crown's case. He expressed a general preference for admitting evidence on questions of relevance and allowing those questions to be addressed when the jury is charged at the end of the trial, rather than excluding evidence pre-emptively on relevance grounds.
To address the Crown's residual concern, Harrison J indicated he would be prepared to grant leave for the Crown to cross-examine the witness under s 38 of the Evidence Act 1995 if the Crown applied for it, given that some of the expressions might amount to unfavourable evidence from the Crown's perspective.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court confirmed that lay witness statements will not always be excluded simply because some observations are framed in opinion-like or inferential language, particularly given the nature of police transcription practices.
- A distinction exists between sentences that appear clearly observational (such as that the deceased "appeared nervous") and those that are more arguably speculative (such as "there was something not right with the man"), though the boundary is not always sharp.
- Where evidence is sought by the defence rather than the Crown, and its admission would not significantly prejudice the Crown's case, a court may be reluctant to exclude it on technical opinion evidence grounds.
- Under s 38 of the Evidence Act 1995 (NSW), a party may be granted leave to cross-examine its own witness where that witness gives evidence unfavourable to the party calling them, and this avenue may be available to the Crown even where the objectionable evidence is led by the defence.
- Harrison J reaffirmed a general approach of admitting evidence where relevance is uncertain, preferring to address relevance in jury directions rather than ruling the evidence out at the pre-admission stage.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 38 (leave to cross-examine one's own witness on unfavourable evidence)
Cases cited: None cited in the judgment.