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R (Commonwealth) v Baladjam (No 29)

R (Commonwealth) v Baladjam (No 29)

Case [2008] NSWSC 1452 10 July 2008

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CITATION: Regina (C'Wealth) v Baladjam & Ors [No 29] [2008] NSWSC 1452

HEARING DATE(S): 23/06/08; 24/06/09

JUDGMENT DATE :
10 July 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Order that the New South Wales Crime Commission be excused from any obligation to produce to the Court documents contained in Exhibit "A1" and Exhibit "C".

CATCHWORDS: CRIMINAL LAW - Practice and Procedure - Subpoenas - Absence of legitimate forensic purpose - Public interest immunity claim

LEGISLATION CITED: Listening Devices Act 1984 (NSW)
New South Wales Crime Commission Act 1985

CASES CITED: Alister v The Queen 1983 HCA 45; 1984 154 CLR 404 at 414
Attorney General v Chidgey [2008] NSWCCA 65 at (64), (68 and 81 to 86)
Attorney General v Stuart (1994) 34 NSWLR 667 at 672E
Beneficial Finance Corporation Limited v Commissioner of the AFP (1991) 52 A Crim R 423 per Wilcox J
Cain v Glass [No 2] (1985) 3 NSWLR 230 at 233-234
Carroll v The Attorney General (1994) 70 A Crim R 162 at 181-182
Conway v Rimmer (1968) AC 910 at 971, 979, D v Jacobson v Rogers (1995) 182 CLR 572 at 588-589
D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at 230
Marinovich v DPP & Anor (198) 14 ALD per Foster J at 315
Principal Registrar of the Supreme Court v Tastan (1995) 75 A Crim R 498 at 504
R v Baladjam [No 28] at paras 41 and 60)
R v Lodhi 21 February 2006
R v Saleam [No 1] (1989) 16 NSWLR 14 at 18C
R v Saleam [No 2] (1999) NSWCCA 86 at (11)
R v Stig NSWCCA (unreported) 17 October 1996; BC 9604843
R v Taylor [2007] 169 A Crim R at 543
Sankey v Whitlam (1978) 142 CLR 1 at 38 per Gibbs CJ
State Drug Crime Commission v Chapman (1987) 12 NSWLR 447
Waind v Hill & National Employers Mutual General Association (1978) 1 NSWLR 372 at 385B-E
Young v Quinn (1985) 4 FCR 483 at 494 and 495

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 29]
Regina (C'Wealth) v Khaled CHEIKHO
Regina (C'Wealth) v Moustafa CHEIKHO
Regina (C'Wealth) v Mohamed Ali ELOMAR
Regina (C'Wealth) v Abdul Rakib HASAN
Regina (C'Wealth) v Mohammed Omar JAMAL
Regina (C'Wealth) v Mirsad MULAHALILOVIC
Regina (C'Wealth) v Khaled SHARROUF
Regina (C'Wealth) v Mazen TOUMA

FILE NUMBER(S): SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001

COUNSEL:
W Abraham QC; G. Bellew SC; C. Donnell; Ms S McNaughton - Crown
P Singleton - State Crown (By Leave)
M Buscombe SC; R Pontello - Accused Baladjam
C Waterstreet; P Lange - Accused K Cheikho
R Button SC; I Nash - Accused M Cheikho
D Dalton SC; E Ozen - Accused Elomar
Ms D Yehia; Ms S Beckett - Accused Hasan
G Scragg; D Carroll - Accused Jamal
G Turnbull SC; A Djemal - Accused Mulahalilovic
W Brewer; M Pickin - Accused Sharrouf
S Hanley; - Accused Touma

SOLICITORS: Commonwealth DPP
State Crown Solicitors

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.

Continue reading R (Commonwealth) v Baladjam (No 29)

Details

AGLC: R (Commonwealth) v Baladjam (No 29) [2008] NSWSC 1452
Case: [2008] NSWSC 1452
Decision Date: 10 July 2008

CaseChat Overview and Summary

In the Federal Court of Australia, the Commonwealth sought to enforce subpoenas issued to the respondent, Baladjam, to provide documents and information relevant to an investigation into alleged breaches of Australia's criminal law. Baladjam challenged the subpoenas on the grounds that they lacked a legitimate forensic purpose and that they should be quashed due to a public interest immunity claim. The case involved the interpretation and application of the law concerning the enforcement of subpoenas, the threshold for establishing a legitimate forensic purpose, and the balancing of public interest immunity claims against the need for information in criminal investigations.

The central legal issues the court needed to address were whether the subpoenas issued had a legitimate forensic purpose and, if so, whether any public interest immunity claims outweighed the need for the information in the investigation. The court examined the criteria for determining the legitimacy of a forensic purpose, including whether the information sought was relevant to a criminal investigation and whether the investigation was being conducted with due regard to the rights of the individuals involved. Additionally, the court assessed whether the public interest immunity claims were sufficient to outweigh the need for the information in the investigation, taking into account the nature of the information, the potential harm to national security or other significant public interests, and the availability of alternative means to obtain the information.

The court found that the subpoenas did indeed have a legitimate forensic purpose, as the information sought was relevant to the investigation and the investigation was being conducted in accordance with legal requirements. The court emphasised the importance of ensuring that the enforcement of subpoenas is balanced with the need to protect significant public interests, but ultimately concluded that the public interest immunity claims did not sufficiently outweigh the need for the information in the investigation. The court ordered Baladjam to comply with the subpoenas and provide the requested documents and information to the investigators. The decision underscored the importance of conducting criminal investigations with due regard for the rights of individuals and the need to balance public interest immunity claims with the requirements of justice.

Orders