Naji Fakhreddine makes a release application under the Bail Act 2013 (NSW). He stands charged with the murder of Bernd Lehmann, an offence which occurred something like 13 years ago on 12 February 2008. There is no dispute that Mr Lehmann was brutally killed in his home on or around that date but for more than a decade the identity of his murderer was not known. The applicant came under suspicion in September of 2020 when a "familial search" was conducted on a DNA database in relation to one of the applicant's sons, Hassan, who was the subject of a police investigation in relation to entirely unrelated matters and who is said to be a member of an outlaw motorcycle club. A DNA match to the crime scene in Mr Lehmann's murder emerged and it showed or suggested that DNA discovered at that scene was that of the brother or father of Hassan.
Thereafter, the investigation appears to have been to some extent, if not some significant extent, focussed on the applicant and a compelling case connecting him to Mr Lehmann has been compiled by the investigating police. This includes DNA and fingerprint evidence establishing, on the prosecution case, a likely sexual relationship between the two men and linking the applicant to a blood stained headless statuette found at the murder scene and said to be the weapon, or one of the weapons, used to kill Mr Lehmann. Because he is charged with murder the applicant is required to show cause why his detention is not justified.
Ms Chan, who appears for the Director of Public Prosecutions ("DPP"), submits that he has failed to do so. Further, she submits that the applicant represents an unacceptable risk of failing to appear (see s 19(2)(a) of the Bail Act). The DPP makes no submission that the applicant represents an unacceptable risk of committing a serious offence (see s 19(2)(b) of the Bail Act), or to the safety of any victims or any individuals or the community (see s 19(2)(c) of the Bail Act). Finally, the Prosecutor does not submit that the applicant represents an unacceptable risk of interfering with witnesses or with evidence (see s 19(2)(d) of the Bail Act).
R v Naji Fakhreddine [2021] NSWSC 1724 | Case summary | Zoe
However, before I turn to consider the unacceptable risk or bail concern raised by Ms Chan on behalf of the DPP it is necessary first to consider the question of whether the applicant has shown cause why his detention is not justified. It is unusual for a person charged with murder in New South Wales to receive bail in advance of their trial, the reason being the provisions of ss 16A and 16B of the Bail Act require such a person to show cause. It is well established now that the question of whether the applicant has shown cause why their detention is not justified must not be conflated with the issue of whether they represent an unacceptable risk of the kind identified as bail concerns in s 17 and unacceptable risks in s 19 of the Bail Act. However, matters in evidence relevant to whether an applicant has shown cause may also be relevant to the issue of whether they represent such an unacceptable risk. [1]
The hearing of the present application has largely been focussed on the strength of the prosecution case although both parties acknowledge that this issue is not determinative of the show cause issue. [2] The Prosecutor tendered a prosecution case statement and some of the evidence upon which it intended to rely at the trial to establish that the applicant was the murderer. Without attempting to be exhaustive, this included initially a statement of the forensic Crime Scene Investigator Sim Hong Te, several statements by a witness, Ilija Vukovic, although that was ultimately tendered by the applicant, and the evidence of the officer-in-charge of the case Ms Margaret Ashburn. Ms Ashburn was cross-examined by Mr Lange of counsel on behalf of the applicant at some length on 5 August 2021 when the matter first came before me as a bail application that had been specially fixed because of its length and complexity by the Registrar. I should also indicate that the prosecution material included its prosecution case statement which summarises both some of the evidence involved and the inferences that the prosecution seeks to have drawn from that evidence.
The cross-examination of Ms Ashburn on 5 August 2021 created some real doubt over a significant piece of evidence relied upon by the prosecution, that being whether the applicant's fingerprint impressions on the statuette, said to be one of, or the, murder weapon, were created in blood. The assertion in the prosecution case statement at paragraph 40 was that the fingerprint expert "concluded that the accused deposited a fingerprint in blood on the statuette" and footnote 54, referred to a statement of Sergeant Tony Bush dated 27 April 2021. However, the cross-examination appeared to establish that the statement therein referred to made no such assertion.
Over objection from counsel for the applicant I allowed the Prosecutor to file additional evidence on this issue after the conclusion of the first day of the hearing. In fact, no further statement was provided by Mr Bush and an explanation for his absence was provided in a supplementary statement of Ms Ashburn. Mr Bush is apparently on "extended leave". However, Ms Ashburn also made reference in her evidence to things she had been told by another fingerprint expert, Senior Sergeant Whyte, and a statement of that officer who has expertise and experience in fingerprint examination was provided informally to my chambers and was tendered formally when the application resumed today. I should indicate that that tender was over the objection of Mr Lange who made a number of submissions in relation to it, one of which was the unfairness of allowing such evidence at this stage of the application when, for all intents and purposes, the case was listed for 5 August 2021 and the case concluded with me reserving judgment. However, he very properly and fairly acknowledged on the last occasion that the evidence was of some significance and, given I was reserving judgment anyway, he could see the force in the Prosecutor's position that they should be entitled to clarify what was a patent deficiency in the material they had up to that point relied upon.
In any event Mr Lange also made an objection, on the bail application, but also foreshadowed an objection at the trial, as to the extent to which Mr Whyte's opinions would be admissible or are admissible based on some well-known passages in the case of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 ("Makita and Sprowles"). [3] I am conscious of the fact that the Bail Act itself does not require strict compliance with the rules of evidence and Mr Lange referred me to Director of Public Prosecutions (NSW) v Tony MAWAD [2015] NSWCCA 227 at [38] where Beech-Jones J made some comments in that regard. I determined to admit the evidence and the expert report of Mr Whyte is now Exhibit E on the bail application.
It was Mr Whyte's opinion that a partial palm print on the base of the statuette and a fingerprint elsewhere on the statuette were deposited in blood or created when the figurine was wet with blood. The applicant has complained that the timing of the provision of this statement puts him in the "invidious" position that he is unable to challenge or test the evidence. As I have said, there is also a further objection to the evidence under s 79 of the Evidence Act 1995 (NSW) and based on things said by Justice Heydon in Makita and Sprowles, to the effect that Mr Whyte's opinion is not based around his expertise and specialised knowledge but rather is nothing more than an ipse dixit. That is a quote from Justice Heydon adopted by Mr Lange, which is to say it is nothing more than a dogmatic or unproven statement. It may be that ultimately that is a matter that cannot be determined in the time available to hear a bail application, even one that proceeds over more than one day, and it will be a matter ultimately for a voir dire and evidentiary ruling at the trial.
Mr Lange relied upon certain passages from an article referred to by Mr Whyte by the authors Nicole Praska and Glenn Langenburg. [4] Mr Lange in particular relies on the observation by the authors that:
"The results of these experiments suggest that the lines dividing a genuine bloody fingermark and a latent fingermark (exposed to blood and subsequently treated with AB/LCV) can be rather blurry. Diluted blood can exhibit a reaction with latent residue, producing a faux blood mark that can resemble a genuine bloody fingermark. While latent fingermark residue alone does not produce a reaction with AB or LCV, it is possible that a latent fingermark exposed to diluted blood and then treated with LCV has the potential to be misinterpreted as a genuine bloody fingermark. The highest dilution of blood that yielded faux blood marks and ridge detail enhancement with the treatment of LCV was 1:10. Dilutions of 1:100 or more did not.
Latent fingermarks exposed to whole blood can exhibit a reaction with AB or LCV that may enhance ridge detail. When the latent fingermark residue was exposed either in the horizontal position or to whole blood in the vertical position for longer than approximately 4 s, the residue was fully coated with blood and a faux blood mark could be observed beneath the layer of blood. Under these conditions, processing with LCV or AB did not enhance ridge detail. But when exposure in the vertical position was quick (less than 4 s), then a void formed where the latent residue was deposited. Ridge detail could be enhanced when it was processed with LCV or AB. It was difficult to determine whether the original mark was a genuine bloody fingermark or if it was a latent fingermark exposed to blood (diluted or whole), but only after treatment with LCV or AB did it become difficult to determine this. Also, the resulting enhanced mark often appeared as a tonal reversal." [5]
Mr Lange made those submissions in writing, in a document which became MFI 3 and Ms Chan this morning has undertaken a thorough critique of Mr Lange's submissions and helpful analysis of both the article itself and the expert certificate of Senior Sergeant Whyte. She has shown or taken me through various images in both the article and also the officer's expert report to make the contention that Mr Lange's submission on behalf of the applicant as to the admissibility of the material cannot be accepted. In particular she has submitted that it is clear from a review of that article that there is a scientific basis for the opinions expressed by Mr Whyte who plainly, and I don't think this part is contested, has qualifications and expertise in the examination of fingerprints including the question of whether or not those fingerprints were created by, with or upon an already bloodied object as opposed to a latent fingerprint subsequently exposed to blood. Her submissions were powerful and ultimately led me to the conclusion, insofar as I am able to reach one at this stage, that the evidence is likely to be admitted at a trial and that a jury will hear the expert opinion of Mr Whyte, that there was this palm print and a fingerprint on the weapon that the prosecution will contend caused the blunt force injuries which were part of the horrific injuries suffered by Mr Lehmann and which led to his death.
Having said that, Mr Lange has also drawn my attention to the limitations in the research on this issue, that is the issue of whether a fingerprint is made by or on a bloodied object as opposed to a latent fingerprint or what is described as a "faux" blood mark at page 57 of the Praska and Langenburg article. My conclusion in relation to that, insofar as I can reach one on the material available, is that this fingerprint evidence is potentially powerful evidence of the applicant's complicity in Mr Lehmann's murder.
In addition to the fingerprint evidence there is also a body of DNA evidence that established, to a degree of near certainty, the applicant's presence at the victim's home at some stage and also the likelihood that there was some sexual relationship between the men. This included a mixed DNA profile in the deceased's throat partially deposited in semen which could, with other evidence upon which the prosecution will rely, lead to an inference that the applicant had ejaculated in the victim's throat and done so at some stage proximate to the victim's death.
The prosecution case statement set out and relied upon in a significant way several statements made by the man, Ilija Vukovic, who was, amongst other things, it seems a sexual partner of the deceased. The statements made by Mr Vukovic between February and May of 2008 contain a number of assertions capable, along with other evidence, of implicating the applicant. This includes an assertion that the victim had told him about a relationship that he, that is the victim, had with a taxi driver that he had met at a particular club and occasions when the victim and others, not necessarily identified as the applicant, were involved in sexual activities of various kinds. It seems it was Mr Vukovic who discovered Mr Lehmann's body and, after a somewhat odd and peculiar delay, reported the matter to police.
Perhaps most significantly, Mr Vukovic said that Mr Lehmann was on the day of his murder intending to travel to Germany to visit relatives, a matter which is clearly established by other evidence and he thought, and this is a quote from his statement, "that Mr Lehmann had arranged to be driven to the airport in a taxi". His evidence or his statement was to the effect that he, Mr Vukovic, intended to drive Mr Lehmann to the airport but was unable to do so and that led to his belief that Mr Lehmann intended to catch a cab.
The significance of that evidence is that the applicant was at the time a taxi driver and the prosecution case theory (set out in the prosecution case statement) is that the applicant was the taxi driver that Mr Lehmann spoke to Mr Vukovic about. There was no record of Mr Lehmann booking a taxi and the prosecution case is that the applicant attended the premises to drive the victim to the airport by arrangement but that things somehow took an unexplained, unexpected and nasty turn leading to the applicant brutally murdering the victim. The cause of death and the crime scene discovered by police at Mr Lehmann's home establish an extremely violent and brutal murder.
The autopsy report, which is also in evidence, describes the cause of death as including sharp and blunt force injuries and there were many, many injuries found by the doctor who performed the post mortem examination. It would seem to be clear that Mr Lehmann was beaten and received those blunt force injuries with some kind of weapon, the prosecution would say the statuette on which Mr Fakhreddine's fingerprints were located, and there was some kind of attempt perhaps to decapitate him as well. It is not necessary to go into the gruesome details other than to say that both the crime scene and condition of Mr Lehmann's body establishes or is capable of establishing to a very high degree the likelihood that whoever committed the killing did so with the intention of killing.
A significant issue that was not apparent from the prosecution case statement and seems to have only been uncovered by the applicant in the course of correspondence, is that Mr Vukovic is dead. The Prosecutor acknowledges that large parts of his statement are therefore likely to be inadmissible as hearsay. It was submitted that some parts of his statement, that is where he makes direct observations, may be first hand hearsay as it comes through the statements and would be admissible under s 65 or other provisions of the Evidence Act. However, it seems to be acknowledged that many of the things said to have been said by Mr Lehmann to Mr Vukovic is second hand hearsay and therefore not attracting the "maker unavailable" provisions in that part or division of the Evidence Act. [6] That may have some substantial impact on the case theory posited in the prosecution case statement and in turn on the strength of the prosecution case.
The applicant agreed to participate in an electronically recorded interview and the prosecution case statement describes that as follows:
"At 7.35am on Wednesday 17 March 2021 detectives attended the home of the accused at a particular address where he was arrested, cautioned, and conveyed back to the Kogarah Police Station. Upon arrival at the police station the accused was introduced to the custody manager Sergeant Paulo who explained his rights under Part 9 of the Law Enforcement Powers and Responsibilities Act 2002. Interpreter Mohammad Said Nahas read the accused his rights from the information sheet provided by the custody manager Sergeant Paulo.
The Police and accused spoke with his solicitor Mohammed Chahine on several occasions - Mr. Chahine initially indicated he would attend the Police Station, but later said he would not by text message, indicating that his client would not participate in an interview. At 11:55am the accused participated in an electronically recorded interview. When the deceased's name was mentioned the accused said he knew the deceased and would see him at the club sometimes playing poker machines and the deceased had given him money". [7]
During the interview the police showed the applicant two photographs of the deceased. The applicant told police he did not wish to talk about this man unless his solicitor was present and the interview stopped. Ms Chan makes the submission on behalf of the DPP that the applicant's admission of knowing the deceased from the club immediately after being shown his photograph during the ERISP and the speed and accuracy with which he was able to recall him from something like 13 years ago constitutes "a significant admission in circumstances where the accused was not otherwise known to be in the deceased's social group and on the face of it their contact would have been otherwise confined to fleeting only." I would be inclined at this stage on the limited evidence available to accept that submission but there are many reasons why the applicant may not have been inclined as a father and grandfather in a long term relationship with a woman, to have answered all of the questions about the nature of the relationship he may have had with Mr Lehmann.
I have not by any means canvassed all of the evidence to be relied upon by the prosecution and only a fraction of that has been provided to me in any event but I have concluded that on its face, and as best as one can make out at this stage of the proceedings, that the case against Mr Fakhreddine appears to be a very strong one. I do accept Mr Lange's submission that there are triable issues and the prosecution will be required to establish its case beyond reasonable doubt many years after the event by this type of circumstantial evidence to which I have but fleetingly referred. But, even acknowledging those limitations and those difficulties, I maintain the view that the case against Mr Fakhreddine is a very strong one. That is a significant matter relevant to the issue of whether Mr Fakhreddine has shown cause why his detention is not justified. However as the authorities show and Ms Chan acknowledges very properly, it is not determinative of the issue.
The applicant relies on a number of factors that in combination are said to establish that he has shown cause. The first is perhaps obvious from the narrative I have provided, that is the offence occurred a very long time ago. It is what is described as, both in the material and generally, a cold case investigation and there is no suggestion that Mr Fakhreddine has attempted to take flight since the murder of Mr Lehmann or since he became aware that there was an investigation that was targeting him. It is not entirely clear to me at the moment when that was. There is also no suggestion that he has attempted in any way to interfere with the investigation or that he has committed any other offence. In fact, that leads to the second matter relied upon which is the fact the applicant is a man in his sixties with no criminal history of any kind. He is married with eight children and 18 grandchildren all of whom reside in New South Wales. One of his sons has provided an affidavit indicating he can deposit a substantial amount of security of over two million dollars and there is also the prospect of the applicant being prepared to enter an undertaking to comply with very stringent bail conditions including what is, in essence, house arrest.
The third matter relied upon is the considerable delay that will occur before the matter comes on for trial. This was a matter of some controversy between the parties. The case is currently before the Local Court and there is a case conference mention on 16 September 2021 and based on the usual procedures under the "early appropriate guilty plea" protocols, that is likely to result in a committal for trial relatively soon thereafter. However, in the course of her evidence on 5 August 2021 the officer-in-charge acknowledged that the brief is not yet complete and when asked how long it might be before the brief was complete she gave what I found to be a somewhat unusual answer in that she estimated it would be five months before the brief is complete. Five months seems like a strange number and I am not sure upon which that is based but what it does show is that, in spite of the fact that this investigation has been going on for over a decade and the investigation into Mr Fakhreddine's involvement for almost a year, the final form of the prosecution brief is not yet complete and is unlikely to be complete any time soon.
The issue about the fingerprint which I have set out earlier in my remarks this morning led to an expert report within five days but otherwise there seems to have been some significant delay in what must be a difficult and intricate investigation by the police in producing the volume of evidence upon which the prosecution will ultimately rely. It is difficult always to estimate how long a case will remain unresolved but I am inclined to accept Mr Lange's submission that as things stand, it is unlikely that this case will be tried until well into the second half of next year and possibly even into the beginning of 2023 noting that a very large number of trials in the Supreme Court have been over the last few weeks, and are expected to be in the coming weeks, vacated because of the inability of the Court to sit jury trials anywhere in New South Wales as a result of the current state of the COVID-19 pandemic and the requirement for people to be in lockdown.
The applicant was charged on 17 March 2021 and so there is likely to be a delay of 18 months or two years and perhaps more before he comes to trial. [8] There is ample case law saying that that factor in itself in a murder case would not satisfy the show cause requirement, but it is one of a number of factors which are relevant to that issue. [9]
Further, like all inmates at this time, the applicant's form of custody, including his opportunity for visits, is limited because of restrictions that Corrective Services have been required to put in place in order to ensure that the COVID-19 virus does not find its way into the Correctional system. The authorities have, at least until the last few days or weeks, been successful because of those strict protocols but there has been some suggestion in the pleadings that there may have been outbreaks in at least two Correctional institutions, and one way or another one would expect that the limitations on visits and other strictures will continue into the future.
The applicant has substantial health problems including cardiac issues and diabetes. Many years ago, I think 18 years ago, he had stents inserted. There is some suggestion in the material that he was scheduled to have further surgery but declined it because of the COVID-19 issue before he went into custody. Mr Lange properly accepts that while he can be treated by Justice Health whilst he is in custody, the applicant would be better treated by his regular medical practitioner.
Those are the matters upon which the applicant relies and the combination of those matters satisfies me he has shown cause why his continued detention is not justified in the particular and peculiar circumstances of his case. As I have said, there is no suggestion by the prosecution or the police that the applicant represents a danger to any individual or to the community at large, notwithstanding the horrific nature of the crime with which he is charged and this is no doubt based upon his age and complete absence of a history of violent offending. I accept the prosecution's submission that there is a bail concern, that being the risk of flight arising from the seriousness of the allegation, the apparent strength of the prosecution case, and the likelihood that upon conviction he would spend the rest of his life in custody. However, that risk can be mitigated by the imposition of stringent bail conditions and in particular by daily reporting conditions and the requirement that his son, as he has offered to do, deposits security in a substantial sum. While I am satisfied there is a bail concern under s 17 of the Bail Act that he will not attend court, I am satisfied that there is no unacceptable risk in that regard.
For those reasons I propose to grant bail on the following conditions:
1. The applicant is to be of good behaviour.
2. He is to live at [REDACTED].
3. He is to report to the [REDACTED] Police Station daily between the hours of 8am and 6pm.
4. He is to appear at the Central Local Court on 16 September 2021 and on such date and at such courts thereafter as required.
5. The applicant is not to be absent from the address at which he is required to live except as follows:
1. If he is in the company of his wife Khadeji Fakhreddine; or
2. To attend pre-arranged medical appointments, 24 hours' notice of which is to be provided to the officer-in-charge of police at [REDACTED] Police Station; or
3. To attend pre-arranged legal conferences, 24 hours' notice of which is to be provided to the officer-in-charge of the [REDACTED] Police Station; or
4. To report to police or to attend court in accordance with this bail undertaking.
1. The applicant is not to have any contact in anyway, except through his legal representative, with any person he knows may be a prosecution witness.
2. The applicant is to travel from the Correctional Centre from which he is to be released on bail in the company of his son, Sam Hussein Fakhreddine, who must be in attendance at the Correctional Centre before the applicant is released.
3. Within 24 hours of his release the applicant is to surrender his passport to the officer-in-charge at [REDACTED] Police Station.
4. The applicant is not to apply for any new passport or travel document.
5. The applicant is not to leave the State of New South Wales.
6. One acceptable person is to enter an agreement under which they agree to forfeit the sum of two million dollars and deposit acceptable surety as security for that agreement.
I now will adjourn unless there is anything else and I note there is to be non-publication of any information that might disclose the applicant's address or whereabouts.
[2]
Endnotes
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [24]-[26]; R v Boyd [2015] NSWSC 1065 at [26]; Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47 at [76]-[86], [129]-[148]; Katelaris v Director of Public Prosecutions (NSW) [2018] NSWCCA 193 at [10]; R v Farrell [2016] NSWSC 1278 at [13].
JM v R [2015] NSWSC 978 at [41]; Director of Public Prosecutions (NSW) v Tony MAWAD [2015] NSWCCA 227 at [44].
At 744.
N Praska and G Langenburg, "Reactions of Latent Prints Exposed to Blood" (2013) 224 Forensic Science International 51 at 51.
N Praska and G Langenburg, "Reactions of Latent Prints Exposed to Blood" (2013) 224 Forensic Science International 51 at 57.
Evidence Act 1995 (NSW), s 65.
Prosecution Case Statement at [37]-[38].
As it transpired the applicant faced two trials with two separate juries being unable to reach a verdict and on 14 February 2025 the Director of Public Prosecutions indicated there would be no further proceedings.
Trinh v R [2016] NSWCCA 110 at [84]-[85]; Al Saleh v Director of Public Prosecutions [2019] NSWCCA 31 at [35]; Lock v R [2016] NSWSC 1705 at [45]; JM v R [2015] NSWSC 978 at [102].
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Decision last updated: 17 February 2025