R v Fakhreddine

1. [1]

   The applicant is charged that he murdered Bernd Lehmann on 12 February 2008. The applicant was arrested in 2021 after certain inquiries led to a DNA match via another family member, placing the applicant at the scene of the murder in a very direct and intimate way.

2. [2]

   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.

3. [3]

   On 28 November 2023, the jury was discharged as a result of being unable to agree on a verdict. On that same day, the trial judge made an interim non-publication order over the fact or details of the discharge of the jury, any evidence given by the accused and any evidence of any other witness in that trial that referred to the evidence of the accused.

4. [4]

   The retrial is fixed to commence before me and a jury on 2 September 2024, slightly over five months from now.

5. [5]

   By amended notice of motion filed 7 February 2024, the applicant seeks an order that any evidence given by him at the 2023 trial not be published until after the conclusion of the retrial or until an order is made ruling his evidence, or part of his evidence, admissible in the retrial. He submits that this order should be made under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”) on the basis that it is necessary to preserve the integrity of the Court’s process, including a fair trial for the accused.

6. [6]

   The Crown opposes the application on the basis that “necessity” has not been established, but if the Court takes the view that necessity has been established, any order should have an exception to allow investigating police to pursue lines of inquiry arising from the applicant’s evidence at the last trial, including publication or dissemination of parts of it to certain sections of the public to assist with ongoing investigation.

7. [7]

   For the reasons that follow I have decided to make the order sought, with the exception requested by the Crown, to remain in effect until verdict, or order of the Court, or 30 November 2024, whichever event is the first to occur.

The evidence to be considered on the application

1. [8]

   An affidavit of the applicant’s solicitor, Michael Ayache, sworn 7 February 2024 was read. It appended media reporting of which he was aware which included an interview and report on Channel 9 News, an extract from an article on 7 News, and a Sydney Morning Herald article, all of which focussed on the Crown and defence opening addresses on the first day of the trial. Those reports included the name of the accused, some personal details about him, and that the Crown case against him was that he had attacked the deceased after a sexual encounter and bludgeoned him numerous times to the head with a 2.7kg statuette. It was also reported that his fingerprints were found on that bloodied statuette, that his semen was detected in the mouth of the deceased, and his DNA traced to cigarette butts found on a coffee table inside the deceased’s unit.

2. [9]

   Mr Ayache’s affidavit also annexed a transcript of the applicant’s evidence given at the 2023 trial. It is extensive and includes an account - given for the first time in the witness box - that while he was present at the deceased’s unit, he saw three people break in and kill the deceased.

3. [10]

   Whilst no affidavit material was tendered by the Crown, a bundle of material was provided which included the Crown Case statement, the transcript of the opening address for the defence, two news articles that reported aspects of the bail hearing in October 2021, including reference to Hamill J’s remarks that there was a strong Crown case, and three news items reporting on the opening day of the trial, including the same Sydney Morning Herald article included in Mr Ayache’s affidavit.

4. [11]

   It was common ground that no media outlet seems to have reported any of the applicant’s evidence, nor the fact that he gave evidence at the trial.

Submissions of the parties

1. [12]

   The applicant accepted that he bears the onus to demonstrate that the order is necessary and that “necessary” does not mean convenient, sensible or reasonable. However he submitted that the word “necessary” should not be given a narrow construction and will depend on the factual circumstances of the case: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 (“Fairfax Digital”).

2. [13]

   It was submitted that the applicant has been sensationally labelled the “Valentine’s Day murderer” after being granted Supreme Court bail in 2021. Despite there being no contemporaneous reporting of the applicant’s evidence during the first trial, there was media coverage before and at the start of the first trial and it is anticipated that the second trial will attract further media attention.

3. [14]

   Counsel for the applicant argued that as the Crown bears the onus of proof regardless of what happened in the first trial, the accused never has to give evidence. At this stage the evidence given by the applicant during the first trial has no status for the second trial, and has not yet been admitted into evidence in the second trial. There is a risk that if his evidence from the first trial is published, it will undermine his right not to give evidence in the second trial.

4. [15]

   The second trial is due to start on 2 September 2024 and a jury will be empanelled. If the evidence is published in the interim five months, it may well come to the notice of members of the public who will form the jury pool and potential jurors will be irretrievably prejudiced by any publication of the evidence.

5. [16]

   Significantly, the applicant submitted, any publication of the evidence would have to be a summary of the evidence and will not reflect the full evidence in the context of the demeanour with which he gave it. In other words, potential jurors will not have the advantage of a trial context where issues are defined and challenged in cross-examination and re-examination.

6. [17]

   There is a concern that by the time the potential jurors come to hear evidence in the second trial, they might have formed views about the case or about the accused. The standard directions will not suffice to prevent prejudice and specific directions will do no more than draw attention to the very matter which is sought to be discounted. It was submitted that as stated by Hidden J in Regina v A, Regina v S, Regina v M [2005] NSWSC 478 at [14]:

7. [18]

   Ultimately it was submitted that the order sought is for a limited period of time, are necessary to protect the integrity of the second trial, and that without such orders the publication of the evidence of the applicant will undermine his right to a fair trial because it will be impossible to secure a jury which would not be influenced by the media reporting of the applicant’s evidence in the first trial.

8. [19]

   The Crown submitted that the comments of Leeming JA in DRJ v Commissioner of Victims Rights [2020] NSWCA 136 (“DRJ”) at [25] and [30] provided a framework within which to properly consider the primacy of the principle of open justice:

9. [20]

   Leeming JA considered and rejected a submission that s 6 of the Act need not be considered if one of the conditions in s 8(1) are satisfied:

10. [21]

    The Crown acknowledged that the effect of the evidence of the accused at the first trial was that he had admitted to being at the apartment, engaging in a sexual act with the deceased and that he provided an explanation as to his fingerprints in blood on the murder weapon. The Crown also acknowledged that the media was not present when the accused gave evidence and there was no reporting of his evidence at that time. While the interim non-publication order has been in place since, there has been no application for a takedown order in respect of the material that is in the public domain.

11. [22]

    The Crown agreed that the accused must of course receive a fair trial and that any potential jury pool should not be contaminated by inadmissible or otherwise inflammatory material.

12. [23]

    It was further submitted that on retrial, the Crown case remained generally the same, relying on the forensic evidence at the crime scene to prove that the applicant was responsible for the murder. There may be some adjustment to evidence that will be tendered, as well as additional evidence that the Crown may seek to tender having heard the evidence of the accused at the last trial. Further investigations are being undertaken arising from the accused’s evidence.

13. [24]

    As the applicant has already waived his right to silence by electing to give evidence in the first trial, no matter what occurs in the second trial, the Crown would still be entitled to cross-examine on the version given in the last trial under ss 103, 104 and 106 of the Evidence Act 1995 (NSW).

14. [25]

    The publication of any evidence the applicant gave in open court on oath in his own defence does not undermine his right for a fair trial, or his decision not to give or call evidence in any new trial. A properly instructed jury will be directed before the commencement of the trial that they must put out of their minds anything that they have read or seen in the media in the past and act only on the evidence led in the trial.

15. [26]

    The applicant’s submission that standard directions would not suffice, discounts the clear line of authority that juries are expected to follow all directions of law they are given.

16. [27]

    Finally, the Crown submitted that the applicant had not established any non-publication order in respect of the applicant’s evidence was “necessary”; only that it might be sensible or prudent to make such an order.

Consideration

1. [28]

   The Act provides, relevantly, as follows:

2. [29]

   The key questions for determination here are whether:

3. [30]

   Salient principles were restated by the Court in Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69 at [25], [26] and [27]:

4. [31]

   Application of principle is of course dependent on context. The observations of Basten JA in Fairfax Digital at [46] have redolence here:

5. [32]

   Consideration of whether to make the order cannot be divorced from its utility and the particular circumstances of its application. A man with an uncommon surname has been charged with murder in violent and particularly recognisable circumstances. He is facing retrial in five months’ time.

6. [33]

   The administration of justice sometimes involves a situation where a jury does not agree and there is a retrial. That is nobody’s fault. There is utility in making the confined order sought as it covers only material not already published.

7. [34]

   A foundational concern is the right to a fair trial. Another is the presumption of innocence. Quite apart from the fact that the applicant has waived his right to silence by giving evidence in the first trial, he is still entitled to the presumption of innocence, and has a right to a fair trial, described by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344; [2004] NSWCA 324 at [18] as “one of the most fundamental aspects of the system of justice in Australia”.

8. [35]

   The material so far published in the media does not include anything said by the applicant in his first trial or the fact that he gave evidence at all.

9. [36]

   It is realistically inevitable that the content of at least some of the applicant’s evidence at the first trial will be placed before the jury in the second trial. However there are five months until that will happen and in the meantime an interesting and potentially unforgettable story could be published using his evidence. Any such story cannot, realistically, comprehensively engage with or reproduce all of the aspects of the evidence given by the applicant and its presentation at the last trial, and it would be difficult to present it in a way that would avoid prejudice to the upcoming trial. If the contents are published in a prejudicial article, there may well be a (valid) application to delay the retrial.

10. [37]

    The order is for a short period only, probably only five to six months, given that the order will be reconsidered, (and likely immediately revoked), upon the evidence in question being sought to be used in the retrial. However that will be at a time when the contents of that evidence can be duly managed and presented, with the jury likely already empanelled. The jury will be directed as to the way in which they should approach that material. That is very different to reading or hearing about a media story based on an interpretation, version or summary of the applicant’s evidence in the first trial in an unsupervised, undirected environment.

11. [38]

    I accept that directions will be made requiring jurors to put out of their minds any media reports about the case they are to decide. We must assume the jury will obey those directions. I acknowledge the fact that where there have been media reports, and even extensive media coverage, this does not invariably result in a delayed trial, successful application for judge alone trial or a concern that a jury or juror cannot bring an impartial mind to bear on the issues.

12. [39]

    Here however, with such peculiar and particular facts, and the inherent difficulty in fairly presenting what amounted to three days of questioning, not previously reported on, the non-publication order sought has real work to do and in my view is necessary to prevent prejudice to the proper administration of justice.

Orders

1. [40]

   I make the following orders:

   1. (1)

      Pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) the publication of the following is prohibited by each of the parties and any news media organisation or any other person until verdict, or further order of the Court, or 30 November 2024, whichever is earlier:

   2. (2)

      This order applies throughout the Commonwealth of Australia.

   3. (3)

      Order 1 shall not apply to the publication of any of the materials referred to in that order published to the relatives of the deceased for the purposes of communicating or advising of the outcome of the trial that commenced on 17 October 2023, or details or prospects concerning any retrial.