Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
Hearing dates:
19 August 2013; 20 August 2013; 21 August 2013; 22 August 2013; 26 August 2013; 27 August 2013
Decision date:
12 December 2014
Before:
Bathurst CJ; Hoeben CJ at CL; Simpson J
Decision:
Mohamed Ali Elomar
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
Abdul Rhakib Hasan
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
Khaled Cheikho
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
Moustafa Cheikho
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal dismissed.
Mohammed Omar Jamal
Catchwords:
CRIMINAL LAW - appeal - conviction - whether miscarriage of justice - evidence admitted - evidence linking accused with other offenders found guilty - publicity before trial - publicity not directly related to accused - relevancy of evidence - probative value of evidence CRIMINAL LAW - appeal - conviction - whether miscarriage of justice - evidence admitted - operation of co-conspirators' rule - whether evidence admissible only if made in furtherance of conspiracy - operation of s87(1)(c) Evidence Act 1995 (NSW) CRIMINAL LAW - appeal - conviction - whether primary judge erred in refusing to discharge jury upon application - crown consented to discharge - whether jury lost its objectivity CRIMINAL LAW - appeal - conviction - whether primary judge erred in admitting evidence - identification evidence - assessment of probative value - impermissible to consider credibility or reliability of witness when assessing probative value CRIMINAL LAW - appeal - conviction - whether primary judge erred in admitting evidence - whether evidence tendency evidence - s 97 Evidence Act 1995 (NSW) - evidence of state of mind - different from evidence of conduct - not necessarily a series of intermittent events, feelings or ideas - difference between facts to be proved by tendency evidence and inferences drawn from circumstantial evidence CRIMINAL LAW -appeal - conviction - whether primary judge erred in refusing separate trials - consideration of prejudicial effect evidence of one accused had on others - effect of terrorist activity subsequent to decision to refuse separate trials CRIMINAL LAW - appeal - conviction - whether primary judge erred in admitting evidence - gruesome imagery - whether erred in assuming material had been accessed by accused - inference of possession of large quantities of material - relevance of emotional responses from jury upon viewing evidence CRIMINAL LAW - appeal - conviction - whether primary judge erred in refusing to dismiss charge of conspiracy - s 11.5(6) Criminal Code 1995 (Cth) - exercise of judicial discretion - no disadvantage or injustice identified - alternative of joint criminal enterprise of multiple substantive offences - whether charge of conspiracy was an added layer of complexity CRIMINAL LAW - appeal - conviction -…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Elomar v R [2014] NSWCCA 303
Case
[2014] NSWCCA 303
Decision Date
CaseChat Overview and Summary
The case of Elomar v R involved an appeal against a conviction related to a conspiracy to commit a terrorist act. The appellant, Elomar, contested various aspects of the trial, including the admissibility of certain evidence, the judge's handling of the jury, and the sentencing. The appeal was heard in the New South Wales Court of Criminal Appeal.
The central legal issues in the appeal included whether the trial judge had erred in admitting evidence linking the accused to other offenders, the admissibility of evidence under the co-conspirators' rule, and the relevance and probative value of certain evidence. Additionally, the court examined whether the trial judge had erred in refusing to discharge the jury, the admissibility of gruesome imagery, and whether the conspiracy charge was an added layer of complexity. Sentencing issues also arose, including the principles of parity and the consideration of cultural practices and the prospects of rehabilitation.
The Court of Criminal Appeal found that the trial judge had not erred in admitting the evidence or in handling the jury, and that the verdict was reasonable given the evidence presented. The court noted that the evidence had significant probative value and was properly assessed by the trial judge. The court also determined that the conspiracy charge was not an added layer of complexity and that the sentencing was appropriate, considering the nature of the offence and the principles of parity. The court held that the appeal against conviction and sentence should be dismissed.
The court did not identify any miscarriage of justice and confirmed the conviction and sentence of the appellant. The reasoning and outcome of the court were grounded in a careful examination of the trial judge's decisions and the principles of evidence and sentencing in criminal law.