R v Fakhreddine (No. 2)

1. [1]

   The accused is on trial before a jury and me for the murder of Bernd Lehmann on 12 February 2008. A trial before Harrison CJ at CL and a jury of 15 commenced on 17 October 2023. On 8, 10 and 13 November, days 14, 15 and 16 of the trial, the applicant gave evidence and was cross-examined. On 28 November 2023, the jury was discharged as a result of being unable to agree on a verdict.

2. [2]

   On 27 March 2024, this Court made orders pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”) prohibiting the publication, (subject to certain exceptions), of any evidence given by the accused in his previous trial. The order was to remain in place until verdict, further order of the Court, or 30 November 2024, whichever is earlier. The procedural history of the 27 March 2024 orders is set out in a judgment of that date: R v Fakhreddine [2024] NSWSC 320 (“Fakhreddine”) at [5] to [11].

3. [3]

   On 9 September 2024, a new trial commenced before me and a jury of 14. On 11 September 2024, after two days of evidence, counsel for the accused brought to the Court’s attention three media publications (with substantially the same content and authored by the same individual) that were said to contravene the Court’s 27 March 2024 orders.

4. [4]

   As a result of those articles being brought to the Court’s attention, the Crown made an oral application that the 27 March 2024 orders be revoked.

5. [5]

   For the reasons that follow, on 11 September 2024, I revoked my orders of 27 March 2024 relating to the non-publication of the accused’s evidence at the last trial.

Submissions of the parties

1. [6]

   The Crown noted that the purpose of the 27 March 2024 orders was, on the basis of the administration of justice, to protect the prospective jury pool. As a result, the balance between open justice and preventing prejudice to the proper administration of justice was struck. That reason has now passed.

2. [7]

   The Crown submitted that there is now no necessity for the order on the basis on which it was argued and deemed necessary at the time. It contended that in circumstances where there is no dispute that the accused’s evidence will be admitted as part of the Crown case, the 27 March 2024 orders could be set aside.

3. [8]

   Counsel for the accused acknowledged the purpose of the 27 March 2024 orders being to protect any potential pool of jurors, however, she submitted that that risk remains, on the basis that there may be some future need to re-empanel a jury, and that prospective pool could then be exposed to the accused’s evidence at his previous trial.

Consideration

1. [9]

   I collated the relevant provisions and authorities for making a non-publication order in Fakhreddine at [28]-[31]. Essential to my consideration was the requirement of s 6 of the Act to take into account that a primary objective of the administration of justice is to satisfy the public interest in open justice.

2. [10]

   There is a requirement under s 12 of the Act to ensure that any order made operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

3. [11]

   My reasons for making the orders on 27 March 2024 were directed at a very specific concern and purpose as set out at [37] and [38] of Fakhreddine:

4. [12]

   Section 13 of the Act provides for review of orders as follows:

5. [13]

   The jury in this current trial is aware that there was a previous trial, and that at that previous trial, the accused gave evidence. The Crown Prosecutor’s opening to the jury on 9 September 2024 included the following:

6. [14]

   The 27 March 2024 orders have served their purpose. The nature of the accused’s evidence in the last trial has been revealed in some detail in the opening, and in the next few weeks his evidence will be read to the jury as agreed between the parties. The proper course was to revoke the orders as they are no longer necessary to prevent prejudice to the proper administration of justice, and so the reason for them has evaporated.