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Supreme Court 16 August 2023

R v Fakhreddine

[2023] NSWSC 928

Homicide
EVIDENCE ADMISSIBILITY COLD CASE WHERE ACCUSED WORKED AS A TAXI DRIVER WHETHER EVIDENCE ADMISSIBLE FOR NON

Citation: R v Fakhreddine [2023] NSWSC 928
Court: Supreme Court of New South Wales
Date: 16 August 2023
Judge(s): Harrison J

Background

The accused stands charged with the 1970s murder of Bernd Lehmann, who was bludgeoned to death with an ornamental statue in his Ashfield apartment on 12 February 2008. The case lay cold for over a decade until a familial DNA search in 2020 brought the accused to police attention, leading to his arrest in March 2021. The accused has pleaded not guilty, and his trial was scheduled to commence in October 2023.

Because nearly thirteen years elapsed between the murder and the arrest, several witnesses who gave statements shortly after the death are now deceased, incapacitated, or untraceable. One such witness is Ilija Vukovic, who discovered the body and gave a police statement in March 2008. Vukovic has since died.

At the centre of this pre-trial ruling is a dispute about four paragraphs of Vukovic's 2008 statement. Those paragraphs recorded what the deceased, Mr Lehmann, had told Vukovic about a sexual encounter with a taxi driver in the weeks before his death. The Crown sought to admit those paragraphs. The accused objected.

Legal Issues

  • Whether the contested paragraphs of Vukovic's statement constituted inadmissible second-hand hearsay under the Evidence Act 1995 (NSW).
  • Whether those paragraphs were nonetheless admissible for a non-hearsay purpose, specifically to support the credibility of two living or previously available witnesses: Marcello Araldi and Vukovic himself.
  • Whether, even if technically admissible for a non-hearsay purpose, the evidence should be excluded under section 137 of the Evidence Act because the danger of unfair prejudice to the accused substantially outweighed its probative value.

Decision

Issue 1: Admissibility as hearsay

Mr Lehmann's account to Vukovic of his encounter with a taxi driver was second-hand hearsay: Vukovic was reporting what the deceased told him, not what Vukovic personally perceived. Because Vukovic is dead, section 65(2) of the Evidence Act, which permits first-hand hearsay from unavailable witnesses, did not assist the Crown. Section 66A, which addresses representations about a person's feelings or beliefs, would have been available had Vukovic been alive, but its operation depended on Vukovic being a witness (at [16], [34]).

Issue 2: Non-hearsay purpose

The Crown argued the passages were admissible not for the truth of what Mr Lehmann said, but to support the credibility of Marcello Araldi, a friend who in 2008 told police that Mr Lehmann had spoken of a taxi driver encounter, but who by the committal hearing in 2022 could recall almost nothing of the detail (at [11]-[13]). The Crown also argued the same paragraphs were relevant to assessing Vukovic's own credibility, particularly given police had initially considered him a suspect (at [15], [18]). Harrison J left open without deciding whether this non-hearsay framing was legally correct, noting some doubt about the Crown's position (at [38]).

Issue 3: Section 137 exclusion

Harrison J excluded the evidence under section 137, which requires a court to refuse evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. The paragraphs in dispute contained details about the taxi driver's age, ethnicity, and attendance at the Wests Leagues Club, none of which Araldi mentioned, and all of which closely corresponded to the accused's own profile (at [25]). The court found that the legitimate probative value of the evidence, viewed against the already existing forensic case, was quite small, while the danger that the jury would use the paragraphs to reason that the accused was the taxi driver Mr Lehmann described was large (at [37]). Harrison J was not satisfied that any limiting direction under section 136 could reliably prevent that misuse, and accordingly refused to admit the paragraphs (at [37]-[38]).

Orders Made

  • On the Crown's application to rely upon paragraphs 11 to 14 of Mr Vukovic's statement dated 16 March 2008, those paragraphs are refused admission.

Key Takeaways

  • Section 137 of the Evidence Act 1995 (NSW) requires exclusion where the danger of unfair prejudice to an accused substantially outweighs probative value, even where the Crown frames its tender as being for a permissible non-hearsay purpose such as credibility (at [37]-[38]).

  • Where second-hand hearsay contains identifying details closely matching the accused, a court may conclude that no jury direction can reliably prevent the jury from reasoning to the truth of the representation, making the prejudice danger significant regardless of the stated purpose of admission (at [36]-[37]).

  • The credibility-support rationale for admitting evidence has limits: the Supreme Court indicated doubt, without finally deciding, whether Vukovic's account of what the deceased told him could properly be characterised as going solely to credibility when its content bore directly on identification of the accused (at [38]).

  • Under sections 65(2) and 66A of the Evidence Act, admissibility of a deceased witness's representations about a third party's account is constrained by the first-hand hearsay rules; where the original maker of the representation is also dead, those exceptions do not extend to rescue second-hand hearsay (at [16]).

  • The thirteen-year gap between the murder and arrest, produced by a familial DNA search in 2020, created the evidential difficulties in this case: the unavailability of multiple key witnesses required the Crown to pursue alternative routes to admission, each of which attracted its own statutory constraints (at [5]-[6]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 59, 60, 62, 65, 66A, 108A, 136, 137

Cases
- R v Singh (No 4) [2021] NSWSC 75