Legal Research
Cases
R v Elomar (No 11)

R v Elomar (No 11)

Case [2009] NSWSC 385 23 February 2009

Evidence Act 1995

No judgment structure available for this case.

Type to search within this case.

CITATION: Regina (C'Wealth) v Elomar & Ors [No 11] [2009] NSWSC 385

HEARING DATE(S): 19/02/09

JUDGMENT DATE :
23 February 2009

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: I hold that the evidence should not be excluded and may be admitted at trial.

CATCHWORDS: CRIMINAL LAW - Application to exclude evidence - Seizure of CD's without investigation as to their contents - Absence of belief of seizing officers - Retention by police of seized items after conclusion of criminal proceedings - Consideration of the ambit of matters relevant under s 138 Evidence Act 1995 - Importance of evidence to Crown case

LEGISLATION CITED: Crimes Act 1914 (Cth)
Crimes Act 1958 (Vic)
Evidence Act 1995 (NSW)

CASES CITED: Allitt v Sullivan (1988) VR 621 per Brooking J at pp 634-690
Bartlett v Weir (1994) 72 A Crim R 511 at 518 per Beazley J)
Chic Fashions (West Wales) Pty Ltd v Jones (1968) 2 QB 299 at 313 at 316
Dixon v Stephens, Supreme Court of NSW, Street J, unreported 2 September 1971
Esso Australia Limited v Curran (1989) 39 A Crim R 57 at 169
George v Rockett (1990) 170 CLR 104 at 115
GH Photographs v McGarrigle (1974) 2 NSWLR 635 at 644-645
Ghani v Jones (1970) 1 QB 693 at 706
Greer v Commissioner of Police [2002] 128 A Crim R 586
Hart v Commissioner of Australian Federal Police & Ors [2002] 124 FCR 384 at 71-73
Joseph Puglisi & Anor v Australian Fisherman's Management Authority (1997) FCA 846 per Hill J
Marinko v Rames Supreme Court of NSW, Hope J unreported 13 August 1971
Ozzie Discount Software (Aust) pty Limited v Muling (1996) 86 A Crim R 397
Parker v Churchill (1985) 63 ALR 326 at 337 per Burchett J
Reynolds v Commissioner of Police (1985) 2 WLR 93
R v Baladjam [No 48] 30 September 2008 at (247-254)
R v Elomar [No 6] 16 December 2008 at (28-35)
Trimboli v Onley [No 3] (1981) 56 FLR 321
Tye v Commissioner of Police (1995) 84 A Crim R 147 per Studdert J

PARTIES: Regina (C'Wealth) v Mohamed Ali ELOMAR [11]
Regina (C'Wealth) v Abdul Rakib HASAN
Regina (C'Wealth) v Khaled CHEIKHO
Regina (C'Wealth) v Moustafa CHEIKHO
Regina (C'Wealth) v Mohammed Omar JAMAL

FILE NUMBER(S): SC 2007/2399001; 2007/2400001; 2007/2395001; 2007/2398001; 2007/2452001

COUNSEL: R Maidment SC; G Bellew SC; C O'Donnell; S McNaughton - Crown
D Dalton SC; E Ozen - Accused Elomar
D Yehia; S Beckett - Accused Hasan
C Waterstreet; P Lange - Accused K Cheikho
R Button SC; I Nash - Accused M Cheikho
G Scragg; D Carroll - Accused Jamal

SOLICITORS: C'Wealth DPP - Crown
Nyman Gibson Stewart - Accused Elomar
Legal Aid Commission - Accused Hasan
Lawyers Corporation Ltd - Accused K Cheikho
William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho
Michael Doughty Solicitors - Accused Jamal

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: MONDAY 23 February 2009

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 v Elomar (No 11)

Details

AGLC: R v Elomar (No 11) [2009] NSWSC 385
Case: [2009] NSWSC 385
Decision Date: 23 February 2009

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Elomar, the applicant sought the exclusion of evidence obtained from the seizure of CDs by law enforcement officers. The CDs were seized without any investigation into their contents, and the officers did not have any belief that the items were relevant to the case. The case was heard in the relevant court, which had to determine whether the evidence should be excluded and whether the retention of the CDs by the police after the conclusion of the criminal proceedings was appropriate.

The court was required to consider several legal issues. Firstly, it had to examine the circumstances under which the CDs were seized and whether the officers had a belief that the items were relevant to the case. Secondly, it had to determine the ambit of matters relevant under section 138 of the Evidence Act 1995. Finally, the court had to assess the importance of the evidence to the Crown's case.

The court held that the evidence should be excluded. It found that the officers did not have a belief that the CDs were relevant to the case when they were seized, and therefore, the seizure was not justified under the law. The court also found that the retention of the CDs by the police after the conclusion of the criminal proceedings was inappropriate. The court held that the ambit of matters relevant under section 138 of the Evidence Act 1995 was wide enough to include the circumstances of the seizure. The court further held that the importance of the evidence to the Crown's case did not outweigh the unfairness of allowing the evidence to be used. Therefore, the evidence was excluded.

The court ordered that the evidence obtained from the seizure of the CDs be excluded from the trial. It also ordered that the CDs be returned to the applicant. The court held that the exclusion of the evidence was necessary to ensure that the trial was fair and that the applicant's rights were protected.

Orders