Supreme Court New South Wales Medium Neutral Citation: R v Fakhreddine (No. 4) [2024] NSWSC 1217 Hearing dates: 17 September 2024 Date of orders: 17 September 2024 Decision date: 27 September 2024 Jurisdiction: Common Law Before: Lonergan J Decision: The edited version of the crime scene footage shown to the Court on 17 September 2024, including the 23 seconds of footage to which objection was taken, can be played to the jury and admitted into evidence. Catchwords: CRIMINAL LAW – murder – evidence – relevance of crime scene footage – retrial – whether previously edited out gruesome images relevant to a fact in issue – satisfied images are relevant to a fact in issue, namely, accused's assertion in the last trial that the deceased had been attacked by others and he was uncertain whether the deceased was dead, and the position in which the deceased was left by the accused Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural rulings Parties: Rex (Crown) Naji Fakhreddine (Accused) Representation: Counsel: S Traynor (Crown) J Layani Ellis (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) One Group Legal (Accused) File Number(s): 2024/00058931 Publication restriction: Consult the Non-publication Register for non-publication orders that apply to these proceedings. JUDGMENT 1. On 17 September 2024, I ruled that the edited version of the crime scene video ("the video") taken at the deceased's home unit between midnight and 1:21am on 15 February 2008, including the 23 seconds of footage to which objection has been taken, can be played to the jury and tendered in evidence. My reasons for that ruling are as follows. 2. Bernd Lehmann was murdered in his apartment at 12/111 Alt Street, Ashfield on Friday 12 February 2008. The Crown case is that he was bludgeoned to death with a 2.7kg statuette. He was found two days later lying on the floor in the doorway to his kitchen. The accused was charged with his murder in 2021. He has pleaded not guilty. 3. In October 2023, the accused was tried before a jury and Harrison CJ at CL. The jury was unable to reach a verdict. At that trial, the accused gave evidence that he had been in the apartment at the time Mr Lehmann was attacked by others and that he found Mr Lehmann on the floor with a plastic bag over his head. He said that he had removed the bag and touched Mr Lehmann's face and head to see if he was alive. 4. At the first trial, prior to the accused giving that evidence, the Crown had edited the video to remove images of the head and face of Mr Lehmann that were considered to be too graphic and unnecessary for the jury to see, given what the Crown understood to be the issues in the case. At that stage, the Crown did not know that the accused was going to give evidence that he was present and touched Mr Lehmann's head and face and that is how his fingers and hands became bloody. This is a key issue because the accused's fingerprints were found in blood on the statuette. 5. During this current trial, the Crown has tendered three particular photographs that show the right side of Mr Lehmann's face in the position in which he was found and photographed by crime scene officer Debnam. 6. By day six of the trial, Monday 17 September 2024, there was some confusion as to when the position of Mr Lehmann's head (and so his face) had been altered by the forensic pathologist, Dr Szentamariay, to facilitate his forensic examination. 7. The Crown argued that that confusion could be eliminated by the tender of the video, including those parts showing clearly the position of Mr Lehmann's head when he was found by police, together with the crime scene log which shows when the taker of the video arrived and left. 8. The Crown Prosecutor also submitted that whilst the objected to portions of the video are graphic, because they show the damaged and bloody state of Mr Lehmann's head and face, these images are relevant because of the nature of the evidence given by the accused at the last trial. The position in which Mr Lehmann's body was found by attending police, and in particular, the position of his head and face, is relevant to an assessment of the accused's account of what he did. A warning can be given to the jury to remain detached and to rationally decide the facts in issue removed from any emotional response, as they have been already warned in respect of the other graphic photographs and images. 9. The objected to portions occur at seven minutes 26 seconds to seven minutes and 36 seconds; nine minutes 20 seconds to nine minutes 26 seconds; and 10 minutes 57 seconds to 11 minutes. 10. Mrs Ellis submitted that these parts of the video are not relevant as they do not go to any fact in issue. 11. First, Mrs Ellis disputed that the video itself could confirm the time certain things occurred given there is no time stamp on the video - i.e. the time of day at which the video was exposed - and so its tender does not solve the question of the position of Mr Lehmann's head and face at different stages during the night and the times at which the various crime scene photographs were taken. 12. Second, Mrs Ellis argued that the video does not shed light on the accused's account that he did not know Mr Lehmann was dead when he saw him on 12 February 2008, because the video only shows how Mr Lehmann appeared when police found him two days later. She argued that it does not shed any light on the accused's account that he put his hands in the blood surrounding Mr Lehmann to check if he was still alive. The Crown's position was that the accused lied about this to explain his bloodied fingerprints on the statuette used to kill Mr Lehmann, but, Mrs Ellis submitted, the accused agreed at the first trial that he did in fact see "a lot of blood." The accused's account was also that there was a plastic bag on Mr Lehmann's head and that he removed the bag, but because he was unsure whether Mr Lehmann was dead or alive, he touched Mr Lehmann's face and neck. Because the objected to portions of the video do not show what the accused saw when he first found Mr Lehmann lying on the floor of the kitchen, those objected to parts of the video are not relevant. 13. An alternative submission was made by Mrs Ellis that the objected to portions of the video do no more than show what is depicted in crime scene photographs already before the jury. 14. Mrs Ellis also argued that if the Court found the objected to portions of the video were relevant, they should be excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that their probative value is outweighed by the danger of unfair prejudice because: 1. the jury already has numerous photographs of the position in which Mr Lehmann was found by police; 2. the video is "live", and so more graphic and confronting; and 3. the video is misleading and not an accurate representation of what the Crown has suggested the accused saw, because by the time the video was made, the accused, according to his evidence, had moved Mr Lehmann. Also, the video was taken two days after the attack on Mr Lehmann and so there would have been more bleeding and consequent soaking of the face and skin in blood. 1. The overarching submission was made that the objected to 23 seconds of footage is of a nature that will inflame the emotions of the jury who already have numerous graphic photographs of Mr Lehmann at the crime scene. Mrs Ellis argued that this will "evoke emotional bias against the accused", and no directions would be able to cure the prejudice, because "what the jury sees cannot be unseen". Decision 1. At the time this application was argued and decided, there had been some confusion in the evidence of crime scene officer Debnam and forensic pathologist Dr Szantamriay about the position of Mr Lehmann's face and head when particular photographs were taken. The objected to parts of the video are directly relevant to clearing up that issue. That issue cannot be cleared up by tender of the crime scene photographs or the tender of the crime scene log alone, because that needs to be considered together with the video content. 2. Considered more widely, the objected to portions of the video are relevant because it is evidence that, if accepted, could rationally after (directly or indirectly) the assessment of the probability of the existence of a fact or facts in issue in the proceedings, namely the position in which Mr Lehmann was found dead by police on 14 February 2008, the position in which he was left by the accused on 12 February 2008, and the extent to which the accused's account of things that he did is supported or otherwise by what is captured on the video. 3. Many graphic crime scene photographs have already been admitted without objection. The objections by Mrs Ellis are confined to the 23 seconds of the video which tend to show more clearly the serious injuries to the right side of Mr Lehmann's face and temple. These images are no more graphic than the crime scene photographs already tendered, or other parts of the video to which no objection has been taken. The jury were warned at the time of empanelling that they would be required to view and analyse graphic images of the deceased, and that they could request to be excused if they felt they could not cope with that and remain objective and impartial. 4. No objection was taken by Mrs Ellis to the other 26 minutes and 37 seconds of the video on the basis that the probative value of it is outweighed by the danger of unfair prejudice to the accused because it was taken two days after the attack and is graphic and does not show how Mr Lehmann looked when the accused left him there in a pool of blood on 12 February 2008. 5. Such a wide objection would obviously be without merit. It has been made very clear to the jury that the photographs were taken two days later. The Crown opened on that basis, and much evidence has been led that has made that delay, and the circumstances that led to Mr Lehmann being discovered, very clear. To suggest that because Mr Lehmann was found two days later the crime scene photographs and videos are "too gruesome" or "misleading" is not a submission that fairly can be made. 6. The focus of the objected to 23 seconds seems to be on removing from the jury's view, video images that tend to show more clearly the serious injuries to the right side of Mr Lehmann's temple and face that have the potential to undermine the accused's version of events given at the last trial. This may be prejudicial to the accused but it is not unfairly prejudicial. 7. The objected to 23 seconds of video showing some aspects of the position in which Mr Lehmann was found by police on 14 February 2008 is not evidence which has a danger of unfair prejudice to the accused that outweighs the probative value of those 23 seconds of the video. 8. It is a matter for the jury to determine what weight to give what is shown in the video in resolving factual issues that are for them to determine. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2025