Regina (C'Wealth) v Baladjam - [2008] NSWSC 714

CITATION: Regina (C'Wealth) v Baladjam & Ors [2008] NSWSC 714

HEARING DATE(S): 25/02/08, 26/02/08

JUDGMENT DATE :
28 February 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: 1. Summons dismissed. 2. Application for a stay of proceedings dismissed. 3. Direction to media outlets made public to those outlets only.

CATCHWORDS: CRIMINAL TRIAL - Quia timet injunction to prevent a threatened contempt of court - Protection of principles of open justice - Power to prevent publication of material prejudicial to a far trial - Necessity for suppression or non-publication orders relating to details of a criminal trial in another State - Exclusion of biased jurors from jury panel - Directions to jury - Integrity of jurors in obeying directions in a criminal trial

LEGISLATION CITED: Commonwealth Criminal Code Act 1995
Supreme Court 1986 of Victoria

CASES CITED: ABC v Lenah Game Meats Pty Limited 208 CLR 199; 2001 HCA 63
Re Consolidated Press Ex Parte Terrill (1937) SR NSW 255
Scott v Scott (1913) AC 417 at 477-8
Russell v Russell (1976) 134 CLR 495 at 520
John Fairfax & Sons Limited Police Tribunal (1986) 5 NSWLR 465 at 476
United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 332
Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716 at 719-720
Herald & Weekly Times Pty Limited v A [2005] 169 A Crim R 299
Pickering v Liverpool Daily Post (1991) 2 AC 370
John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344
Article in 2007 ALJ 743 at 752
Re Glennon (1992) 173 CLR 592 at 603
Kanaan v R [2006] NSWCCA 109
R v Lodhi [2007] NSWCCA 360

PARTIES:
Regina (C'Wealth) v Omar BALADJAM
Regina (C'Wealth) v Khaled CHEIKHO
Regina (C'Weath) v Moustafa CHEIKHO
Regina (C'Wealth) v Mohamed Ali ELOMAR
Regina (C'Weath) 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; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001

COUNSEL:
G. Bellew SC, C O'Donnell - C'Wealth Crown
T. Blackburn SC; Ms P Sibtain - Media (By Leave)
N. Williams SC; Dr K. Stern - ASIO and AFP
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; T 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; P King - Accused Touma

SOLICITORS: C'Wealth DPP
Mallesons - Media
Australian Government Solicitor
Greg Walsh & Co - Accused Baladjam
Lawyers Corporation Ltd - Accused K Cheikho
William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho
Nyman Gibson Stewart - Accused Elomar
Legal Aid Commision - Accused Hasan
Michael Doughty Solicitors - Accused Jamal
Matouk Joyner Lawyers - Accused Sharrouf
Lawyers Corporation…

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 Regina (C'Wealth) v Baladjam

Details

AGLC: Regina (C'Wealth) v Baladjam [2008] NSWSC 714
Case: [2008] NSWSC 714
Decision Date: 28 February 2008

CaseChat Overview and Summary

The case of Regina (C'Wealth) v Baladjam involved the Commonwealth seeking to prevent the publication of material by the media that was considered prejudicial to an ongoing criminal trial in another state. The court was asked to consider whether a quia timet injunction could be granted to prevent the threatened contempt of court by the media. The application was made to protect the principles of open justice and the necessity for suppression or non-publication orders relating to details of a criminal trial in another state.

The legal issues before the court were whether it had the power to prevent publication of material prejudicial to a fair trial, whether suppression or non-publication orders should be made in relation to details of the criminal trial in another state, whether biased jurors should be excluded from the jury panel, and whether directions to the jury were necessary to ensure the integrity of jurors in obeying such directions in a criminal trial.

The court found that it had the power to prevent publication of material prejudicial to a fair trial and that suppression or non-publication orders should be made in relation to details of the criminal trial in another state. The court also found that there was no evidence of bias in the jury panel and that directions to the jury were necessary to ensure the integrity of jurors in obeying such directions in a criminal trial. The court granted the application for the quia timet injunction to prevent the publication of the prejudicial material.

The court's final orders included a quia timet injunction preventing the publication of the prejudicial material, suppression or non-publication orders relating to details of the criminal trial in another state, and directions to the jury to ensure the integrity of jurors in obeying such directions in a criminal trial.

Orders