R v Fahmy (No. 2) [2026] NSWDC 334

R v Fahmy (No. 2) [2026] NSWDC 334 concerns the accused’s application to exclude the whole of Crown witness Sam Diego’s evidence after he failed to return for further cross-examination about his personal income tax returns. The Court accepted that the lost opportunity caused procedural unfairness but held that the evidence had high probative value. Diego’s credit had already been substantially challenged, the returns were in evidence and available for forensic use, and any remaining prejudice could largely be addressed through an appropriate jury direction. The thresholds for exclusion under ss 135 and 137 of the Evidence Act 1995 (NSW) were not met, and the application was refused.