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Supreme Court 6 November 2023

R v Fakhreddine

[2023] NSWSC 1333

Homicide
CRIMINAL LAW MURDER EVIDENCE CROWN REVISITATION OF A PRIOR RULING CHANGED FORENSIC LANDSCAPE PREJUDICE REMAINS

Citation: R v Fakhreddine [2023] NSWSC 1333
Court: Supreme Court of New South Wales
Date: 6 November 2023
Judge: Harrison J

Background

The accused stands trial for the murder of a man referred to in the proceedings as Mr Lehmann. The Crown's case involved forensic evidence linking the accused to the deceased's apartment, and the accused has since conceded he was present in the apartment at the time of the murder and had engaged in a sexual encounter with the deceased in the weeks prior to his death.

Three separate evidentiary disputes arose during the trial. Harrison J had previously ruled, in August 2023, against admitting certain paragraphs from a police statement given by a witness named Mr Vukovic. The Crown sought to revisit that ruling and also pressed for admission of workers compensation records and a statement from another witness, Mr Faaatuatu.

All three witnesses whose statements were at issue were dead at the time of trial, which shaped the hearsay analysis throughout.

  • Whether the changed forensic landscape during the trial justified reopening and reversing the earlier ruling excluding Mr Vukovic's statement
  • Whether Mr Vukovic's statement could be admitted for a non-hearsay purpose, specifically to rebut anticipated criticism of the police investigation
  • Whether workers compensation and medical records were admissible to establish a financial or interpersonal motive for the murder
  • Whether the statement of Mr Faaatuatu, a now-deceased witness, could be adduced in evidence

Decision

Vukovic statement: Harrison J declined to revisit the earlier exclusion. The statement recorded what Mr Vukovic heard Mr Lehmann say about a sexual encounter with a taxi driver, making it second-hand hearsay inadmissible for any hearsay purpose. The Crown argued that the accused's concessions during trial had significantly reduced the prejudice, but the court found this misconceived the nature of the prejudice. Because the accused did not concede he was the specific taxi driver referred to in the conversation, the inability to cross-examine the now-deceased Mr Vukovic remained a real forensic disadvantage. The probative value of the material was outweighed by that unfair prejudice under s 137 of the Evidence Act 1995 (NSW).

The Crown's alternative submission, that Mr Vukovic's statement could be admitted to contextualise the police investigation and rebut criticism of its direction, also failed. Mr Araldi's own conversation with police in May 2008 provided the same justification for the taxi driver line of inquiry, so admitting Mr Vukovic's statement for that purpose would add little probative value while the prejudice remained.

Workers compensation records: The Crown sought to tender documents relating to the accused's workers compensation claim and medical history as evidence of a possible financial motive to steal money the deceased was carrying. Harrison J found the nexus between these documents and any suggested motive rose no higher than speculation. The slender probative value was substantially outweighed by the danger that a jury might form an illegitimate stereotypical view of the accused based on the nature of his compensation claim.

Faaatuatu statement: Although Mr Faaatuatu was also dead, making his account of what the deceased told him technically inadmissible hearsay, Harrison J permitted most of the statement to be adduced. The substance of the evidence, that the deceased regularly met men at pubs and clubs and brought them back to his apartment for sexual encounters, had already been given by several other living witnesses without challenge. Excluding the statement would elevate form over substance. However, five specific sentences were excluded, each consisting of out-of-court representations attributed either to Mr Faaatuatu or the deceased that went beyond what the surviving evidence established.

Orders Made

• The statement of Mr Faaatuatu may be adduced in evidence, subject to the exclusion of specific sentences identified in the judgment.

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), where an accused loses the opportunity to cross-examine a deceased witness whose contested statement remains in dispute, that forensic disadvantage can constitute unfair prejudice sufficient to exclude the evidence even after the accused has made significant concessions during trial.
  • A changed forensic landscape during a trial may justify reconsidering an earlier evidentiary ruling, but the Crown must demonstrate that the original basis for the prejudice finding has genuinely diminished, not merely that the accused's position has evolved.
  • Where an alternative source of evidence already provides the same factual foundation the Crown seeks to establish, the incremental probative value of additional contested evidence is reduced and may not overcome a persisting prejudice finding.
  • Workers compensation documents and medical records will not readily establish motive where the connection between the accused's financial circumstances and an alleged intent to steal from the deceased amounts to nothing more than speculation.
  • A technically inadmissible hearsay statement from a deceased witness may nonetheless be admitted in substance where the same evidence has already been received without challenge from multiple living witnesses, provided specific out-of-court representations are excised.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 137

Cases:
- R v Fakhreddine [2023] NSWSC 928 (the earlier ruling by Harrison J on the Vukovic statement)