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R v Mallah

R v Mallah

Case [2005] NSWSC 358 11 February 2005

Notice

Admissibility of Evidence

Criminal Law

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Reported Decision:
154 A Crim R 150

New South Wales

Supreme Court

CITATION:
R v Mallah [2005] NSWSC 358

HEARING DATE(S): 31/1/05 - 2/2/05

JUDGMENT DATE :

11 February 2005

JUDGMENT OF:
Wood CJatCL at 1

DECISION:
Motion of Accused dismissed.

CATCHWORDS:
Criminal Law - pre-trial issues - notice of motion of accused to disallow tender of evidence.

LEGISLATION CITED:
Crimes Act 1914
Criminal Code Act 1995
Evidence Act 1995

CASES CITED:
DPP v Carr (2002) 127 A Crim R 151
DPP v Coe [2003] NSWSC 363
R v Blick (2000) 111 A Crim R 326
R v Chimirri [2002] VSC 555
R v Cummins NSWCCA 23 November 1998
R v Dalley [2002] NSWCCA 284
R v Dewhurst [2001] VSC 172
R v Em [2003] NSWCCA 374
R v Esposito (1998) 45 NSWLR 442
R v Helmhout [2001] NSWCCA 372
R v Juric [2002] 4 VR 411
R v Ladocki [2004] NSWCCA 336
R v Lisoff [1999] NSWCCA 364
R v MAI and Anor (1992) 26 NSWLR 371
R v Phan [2003] NSWCCA 205
R v Roba [2000] VSC 96
R v Suckling [1999] NSWCCA 36
R v Suteski (2002) 56 NSWLR 182
Ridgeway v The Queen (1995) 184 CLR 19

PARTIES:
Regina
Zaky Mallah

FILE NUMBER(S):
SC 2004/2101

COUNSEL:
R J H Maidment SC with G J Bellew
P I Lakatos
P R Boulten SC

SOLICITORS:
Commonwealth Director of Public Prosecutions
I V Knight
Murphy's Lawyers Inc

LOWER COURT JURISDICTION:

- 59 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Friday 11 February 2005

2004/2101 Regina v Zaky Mallah

JUDGMENT

1 HIS HONOUR: The accused has been charged, upon indictment, with offences that:

1. Between about 2 June 2003 and about 29 September 2003 at Sydney in the State of New South Wales did an act, namely, he acquired a Sterling brand 0.22 calibre rifle, in preparation for, or planning, a terrorist act, namely, he threatened to kill officers of the Australian Security Intelligence Organisation or the Department of Foreign Affairs and Trade: s 101.6(1) Criminal Code 1995 (Cth);

2. Between about 28 November 2003 and 3 December 2003 at Sydney in the State of New South Wales did an act, namely, he sold to an undercover police operative a video tape recording, six photographs depicting the accused and a three page typed statement for the sum of $3,000, in preparation for, or planning, a terrorist act, namely, he threatened to kill officers of the Australian Security Intelligence Organisation or the Department of Foreign Affairs and Trade: s 101.6(1) Criminal Code 1995 (Cth);

(a) made to another person, namely, to undercover officer using an assumed name “Greg” (the second person) a threat to cause serious harm to a third person, namely, he threatened to kill unidentified officers of the Department of Foreign Affairs and Trade or the Australian Security Intelligence…

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 Mallah

Details

AGLC: R v Mallah [2005] NSWSC 358
Case: [2005] NSWSC 358
Decision Date: 11 February 2005

CaseChat Overview and Summary

The case of R v Mallah arose in the Supreme Court of Victoria, where the defendant, Mallah, faced criminal charges. The primary dispute centred around the admissibility of certain evidence intended to be presented by the prosecution. The defendant sought to have this evidence disallowed through a pre-trial motion. The court was tasked with determining whether the evidence in question met the necessary criteria for admissibility and whether the defendant's rights under the law were being upheld.

The legal issues that required resolution involved the interpretation of the rules governing the admissibility of evidence in criminal trials. Specifically, the court needed to ascertain whether the evidence presented by the prosecution was relevant, reliable, and did not unfairly prejudice the defendant. Furthermore, the court had to consider whether the notice of motion provided by the defendant was sufficient to challenge the admissibility of the evidence on the grounds of unfairness or breach of legal principles.

In delivering its judgment, the court meticulously examined the nature and content of the evidence proposed by the prosecution. It considered whether the evidence was relevant to the charges and whether it could be deemed prejudicial or misleading. The court also assessed the procedural fairness of the notice of motion submitted by the defendant, determining whether it was appropriately framed and presented to challenge the admissibility of the evidence. Ultimately, the court found that the evidence was admissible, and the defendant's notice of motion was insufficient to disallow it. The court's decision was grounded in the principles of fairness and the preservation of the defendant's right to a fair trial, balanced against the necessity of allowing relevant evidence to be presented.

The final orders of the court were that the notice of motion submitted by the defendant was dismissed, and the evidence intended to be tendered by the prosecution was deemed admissible. The trial proceeded with this evidence being presented to the jury, as determined by the court's ruling on the admissibility of the contested material.

Orders