R v Fakhreddine

1. [1]

   HIS HONOUR: In anticipation of the trial in this matter which commenced on 17 October 2023, the following evidentiary issues require resolution.

CCTV footage – Wests Ashfield Club

1. [2]

   The Crown wishes to tender CCTV footage exposed at the Wests Ashfield Club on 7 February 2008 and 8 February 2008. Although there is no issue that Mr Fakhreddine was a taxi driver at the relevant time, or that he frequented the club where he met the deceased, the Crown maintains that the material is relevant to establish the probability of the following matters:

2. [3]

   The tender of the CCTV footage is opposed. Mr Fakhreddine contends that the issues to the proof of which the material could relate are now conceded so that the material either has no relevance or would be productive of an undue waste of court time.

3. [4]

   I consider that the material is relevant and should be admitted. It will be obvious that the fact that Mr Fakhreddine may have conceded some matters to which the footage is directed, does not mean that the Crown is thereby constrained or limited by such concessions in the way in which it chooses to conduct its case. For example, as already noted, Mr Fakhreddine concedes that he was a taxi driver in February 2008. However, there is other evidence that the Crown expects to call about the deceased’s circle of friends and whether he may have had a sexual encounter with a taxi driver shortly before the murder. The importance of the visual representation of Mr Fakhreddine in the taxi driver uniform can easily be understood as part of the matrix of circumstances that the Crown wishes to emphasise. It is not suggested that the footage is unfairly prejudicial or that it is attended by some other allegedly disentitling characteristic upon the basis of which it should be excluded on discretionary grounds.

German/Berlin map/street directory

1. [5]

   The deceased was due to fly to Germany on the day he was murdered. It had been his expressed intention to return to Germany to visit relatives in the country of his birth. Following his arrest in March 2021, a search was conducted of Mr Fakhreddine’s residence at 38 Bellevue Street, Arncliffe. On that occasion, police located a plastic bag containing what has been described as a map of Potsdam, near Berlin. It is written in German and is in the form of a street directory. The directory did not contain any relevant DNA material or fingerprints linking it to Mr Fakhreddine. There is no evidence to suggest that Mr Fakhreddine speaks German or has ever been to Germany. His first language is Lebanese.

2. [6]

   The deceased emigrated to Australia from East Germany in the 1960s. He has returned to visit Germany on a number of occasions. The date of publication of the directory is 1991/1992, which is around the time that the deceased returned to Germany for the first time. The Crown maintains that the directory is a piece of circumstantial evidence that tends to support the probability that it was Mr Fakhreddine who took it from the deceased’s apartment at some time, and that it is unlikely it would have been taken on an occasion other than the day that the deceased was killed.

3. [7]

   As with almost any piece of circumstantial evidence, the facts that Mr Fakhreddine was found in possession of a street directory for an East German location, written in German and published in 1991 or 1992 when the deceased previously visited the country, from which he had earlier emigrated, when German is not Mr Fakhreddine’s first language and where it appears he has never been to Germany, are matters that do not, standing alone, prove that he murdered the deceased. However, the Crown maintains that these facts, together with other facts to be established in the trial, taken as a whole and not in a piecemeal fashion, are capable of supporting an inference that Mr Fakhreddine took the directory from the deceased’s home.

4. [8]

   The Crown emphasises that there can be no unfairness in the reception of this evidence as the Crown will otherwise lead evidence that the directory could not be forensically linked to Mr Fakhreddine: the Crown relies only upon the inference that it is likely to have come from the deceased’s home.

5. [9]

   I consider that the directory is capable of supporting the inference upon which the Crown proposes to rely and that it should be admitted.

Evidence of Marcello Araldi – s 38 application

1. [10]

   Marcello Araldi provided the police with statements on 8 March 2008, 17 April 2008 and 2 March 2020. At the committal proceedings in the Local Court on 2 September 2022, the prosecutor sought, and was granted, leave to cross-examine him. That application was effectively triggered by a comparison of three things. The first was what Mr Araldi said in his 15 April 2021 statement at [8] as follows:

2. [11]

   The second is what appears in the police statement of Detective Sergeant Nicholas Sedgwick dated 25 August 2021. The relevant portion of that statement is as follows:

3. [12]

   The third was what happened during the course of Mr Araldi’s evidence itself at the committal. The following extract from that evidence should be noted:

4. [13]

   Section 65 of the Evidence Act is relevantly as follows:

5. [14]

   Mr Araldi’s inability to recall the reference to what he told Detective Sedgwick about the fact that the deceased had mentioned a taxi driver who he had picked up and who he had offered to stay the night, and that they just had sex and the taxi driver left, clearly triggered the operation of s 38 of the Evidence Act: the evidence that Mr Araldi had given, which did not include these matters, was for that reason unfavourable to the Crown. Mr Araldi had also told Detective Sedgwick that the deceased told him these things about two weeks before he was killed. Mr Araldi had said he assumed that when the deceased told him this story it had only recently occurred.

6. [15]

   The evidence in this trial and that to which my attention has otherwise been drawn and which might be expected to be given indicates that the deceased was a gay man who was in the habit of regularly engaging in casual sex with other men who he often met at local clubs that he frequented. The deceased often invited these men to his apartment for that purpose. Discussion of these encounters among his circle of male friends and acquaintances was commonplace. The prospect that the deceased spoke to Mr Araldi about one such encounter, in the circumstances just described, makes it in my opinion unlikely that the deceased’s representation to him was a fabrication. It was also made in circumstances that I consider make it highly probable that the representation is reliable, where the unselfconscious recounting of sexual experiences was unremarkable and unexceptional.

7. [16]

   The Crown should be given leave to cross-examine Mr Araldi on this limited issue.

Rebuttal of good character

1. [17]

   Mr Fakhreddine has no criminal record. The Crown anticipates that a submission will be made that he is therefore a person of prior good character. In those circumstances, the Crown has sought an advance ruling in accordance with s 192A of the Evidence Act 1995 that certain material can be led in order to rebut any such submission.

2. [18]

   The material in question consists of a transcript of a legally intercepted and recorded telephone conversation between Mr Fakhreddine and his son on 12 December 2020. It emerges from this conversation that Mr Fakhreddine either slapped or punched an 86 year old Iraqi man with whom it appears he had some kind of altercation. The altercation apparently erupted as the result of things that were posted on a WhatsApp group. Part of what Mr Fakhreddine is recorded as saying is as follows:

3. [19]

   Section 110(2) and (3) of the Evidence Act provides:

4. [20]

   In the present case, Mr Fakhreddine has indicated that he intends to raise character generally or in a particular respect, presumably that he is not a person prone to acts of violence.

5. [21]

   The Crown submitted that if Mr Fakhreddine wishes to raise good character, either generally or in a particular respect, that he is a person who has no convictions and is therefore not a person likely to commit an act of violence, it should be permitted to lead in rebuttal in its case the evidence of the telephone call in which Mr Fakhreddine admits hitting an older Iraqi man who had caused him some offence by posting something on a WhatsApp group.

6. [22]

   In my view, this material should not be admitted.

7. [23]

   I am not satisfied that the incident described in the intercepted conversation says anything of substance about Mr Fakhreddine, let alone anything about his character in either general or specific respects. It would appear that he became upset about what had been published by the Iraqi gentleman. The precise terms of the publication are not known. There is also some doubt about whether Mr Fakhreddine punched or slapped the man, a doubt that cannot be resolved by me. It does not in these circumstances seem to me to be appropriate for the Crown to be permitted to attempt to impugn Mr Fakhreddine’s otherwise unblemished record by reference to a vague incident that considerably post-dated the murder and which was relatively insignificant in the scheme of things.

8. [24]

   I note that I have been helpfully taken to the observations of Natalie Adams J in R v Wiggins (No 7) [2022] NSWSC 1249 at [61]-[68] and of Hamill J in R v Quami & Ors (No 61) [2016] NSWSC 1192 at [6] and [23]. I am conscious of the competing considerations that those decisions eloquently explore. However, the material in the transcript is a scant and potentially enigmatic artefact of Mr Fakhreddine’s life and as such has the troublesome potential disproportionately and therefore unfairly to undermine his proposed reliance upon an otherwise unblemished past. I consider that there is an undoubted potential for prejudice to Mr Fakhreddine which would be undue and disproportionate, having regard to the probative significance of the transcript upon the issue of good character: see, for example, Regina v Stalder [1981] 2 NSWLR 9 at 20.