R v Fakhreddine

1. [1]

   HIS HONOUR: The trial in this matter is scheduled to commence on Tuesday 3 October 2023. By his notice of motion dated 11 September 2023, Mr Fakhreddine seeks orders that the trial be vacated. He relies upon the affidavit of Mohammad Chahine sworn on the same date.

2. [2]

   Mr Chahine’s affidavit is relevantly as follows:

3. [3]

   In response to that affidavit, the Crown relies upon the affidavit of Amarande Chauvet affirmed today. That affidavit is relevantly as follows:

4. [4]

   The proceedings were before me for pre-trial argument on several issues on 21 July 2023. The following exchange should be noted:

5. [5]

   In the events that occurred, the matter was only re-listed before me following an email to the parties reminding them of the fact that I was still scheduled to be on leave from 15 September 2023, as foreshadowed on 21 July 2023.

Consideration

1. [6]

   Mr Lange of counsel for Mr Fakhreddine accepts that those who instruct him ought properly to have attended to the issue of obtaining expert reports in the nominated areas, and ought to have organised funds for that purpose, long before now. He does not put forward any material that supports this application that could be characterised as unforeseen events or circumstances beyond the control of Mr Fakhreddine or his lawyers.

2. [7]

   The understandable burden of Mr Lange’s submissions in the circumstances is that Mr Fakhreddine will not be able to secure a fair trial unless counsel then appearing for him is armed with expert evidence from specialists in DNA analysis, fingerprints and blood spatter characteristics with which to cross-examine the several experts in these areas of specialty that have been marshalled by the Crown. He raises the spectre that if Mr Fakhreddine were convicted at trial in the absence of such defence material, there is a significant prospect that a miscarriage of justice will have occurred if some significant flaw or inadequacy in the Crown’s forensic material, upon which he was not able effectively to cross-examine or to which nothing other than a generic challenge could be mounted, later emerges.

3. [8]

   The difficulty with that proposition is perhaps obvious. If it is contended that Mr Fakhreddine will have secured the funds or the energy to fund an examination of the Crown’s forensic evidence after his trial, there is no basis for delaying the trial until that happens if it could, and should, have been done long before now. Moreover, as the Crown emphasises, the evidence upon which this application proceeds is not such as to generate any confidence that Mr Fakhreddine’s recalcitrance will be overcome or cured by a speculative adjournment.

4. [9]

   Furthermore, Mr Fakhreddine is as yet unable to identify, other than on a purely theoretical or hypothetical basis, that there are any reasonably likely difficulties with the forensic evidence upon which the Crown relies. Without overlooking the obvious non sequitur, that the issue will not be known until his experts are retained, Mr Fakhreddine does not even offer a general comment suggesting that the Crown’s experts are wrong, either because of some obvious or fundamental methodological error or because their reports contain some other disqualifying characteristic. It must be borne in mind that Mr Fakhreddine was apprehended by a familial match long after the DNA evidence from the scene of the murder had been collected and logged. It included, on the Crown case, DNA evidence related directly to the murder of the deceased, such as fingerprints in the deceased’s blood on the murder weapon, as well as DNA from cigarette butts at the deceased’s apartment and semen in the deceased’s mouth, that would, if accepted, place Mr Fakhreddine at the scene even if not necessarily at the time of the acts causing death. In other words, the circumstantial case mounted by the Crown will presumably inform Mr Fakhreddine’s presence at the apartment at some time, even if not coinciding with the day of the murder. It is therefore difficult in the circumstances to conceptualise the posited forensic disadvantage that the proposed adjournment is intended to cure.

5. [10]

   Mr Fakhreddine’s adult children have been flagged as possible contributors to his financial needs. No material from them suggests that they are willing to do so, or why, if they are, they have not done so by now. Mr Fakhreddine is in full-time employment and it is accepted that he is not a candidate for Legal Aid in accordance with standard guidelines. The present application has not been mounted upon the basis that he will be legally unrepresented for want of funds to pay for representation: the suggestion that his children will need between 9 and 12 months to raise funds to pay lawyers does not automatically translate into such a conclusion.

6. [11]

   Finally it should be recalled that the events that give rise to these proceedings occurred as long ago as 12 February 2008. Although it is not in my opinion determinative of the present application, it would generally be in the interests of justice that there be no further delay of the trial if that were possible without corresponding unfairness to Mr Fakhreddine. However, I should indicate for the sake of clarity in the present case that Mr Fakhreddine’s interests in receiving a fair trial would prevail if the only competing issue were the desire to avoid further delay.

7. [12]

   The present application is entirely without merit. The Crown has conceded that it would form the Crown’s perspective be possible to start the trial later than planned to offer some respite to Mr Fakhreddine. I am disinclined to accept that proposal at this stage. It may be possible to revisit it on 3 October 2023 when the trial is due to start. However, at present I consider that the application to vacate the trial should be refused and the trial date should otherwise be confirmed.