Regina (C'Wealth) v Baladjam [No 11] - [2008] NSWSC 1436

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 11] [2008] NSWSC 1436

HEARING DATE(S): 09/04/08

JUDGMENT DATE :
16 April 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Order that evidence of training camp activities be allowed.

CATCHWORDS: CRIMINAL LAW - Evidence - Conspiracy rules - Relevance - s 56 Evidence Act 1995

LEGISLATION CITED: Criminal Code Act 1995
Evidence Act 1995

CASES CITED: Ahern v The Queen (1988) 165 CLR 87 at 94-95
Odgers Uniform Evidence Law 5th Edition at page 114
Papakosmos v The Queen (1999) 196 CLR 297 at 307; 312 and 321-322
Smith v The Queen [2001] 206 CLR 650 at 653
R v Chai (1992) 27 NSWLR 153 at 191
R v Masters (1992) 26 NSWLR at 465-6

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 11]
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:
Ms W. Abraham QC; G. Bellew SC; C O'Donnell; Ms S McNaughton - Crown
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; P King - Accused Touma

SOLICITORS: Commonwealth DPP
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 Commission - Accused Hasan
Michael Doughty Solicitor - Accused Jamal
Matouk Joyner Lawyers - Accused Sharrouf
Lawyers Corporation Ltd - Accused Mulahalilovic
Burke & Elphick Lawyers - Accused Touma

- 1 -

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

WHEALY J

PARRAMATTA: WEDNESDAY 16 April 2008

2007/2397001 - Regina v Omar BALADJAM [No 11]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT

1 HIS HONOUR: There are for decision a series of applications to exclude from the trial evidence of two 2005 camping trips in rural New South Wales. The participants in each case were a number of the accused.

2 The first camp occurred between 16 and 18 March 2005. It related to a rural property named Curranyalpa. This property was hired out to hunting/shooting groups and was located 56 kilometres south of Louth and approximately 140 kilometres southwest of Bourke.…

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.

Keep reading for free

Create a free CaseChat account to read Regina (C'Wealth) v Baladjam [No 11] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWSC 1436
Decision Date: 16 April 2008

CaseChat Overview and Summary

The respondents were convicted of drug trafficking offences in the Federal Court of Australia. The appellants were co-accused who had been acquitted by the jury. The respondents appealed their convictions on the grounds that the trial judge had erred in admitting evidence that was irrelevant or prejudicial under the Evidence Act 1995. The appellants cross-appealed on the basis that the trial judge had excluded relevant evidence that should have been admitted. The High Court of Australia heard the appeals and cross-appeals together.

The main legal issue was whether the trial judge had applied the correct test for determining the admissibility of evidence under section 56 of the Evidence Act. Section 56 provides that evidence is to be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion or misleading the jury. The respondents argued that the trial judge had failed to consider the potential prejudice of the evidence and had relied too heavily on its probative value. The appellants argued that the trial judge had excluded evidence that was highly relevant to the respondents' case and that was necessary to rebut the prosecution's case.

The High Court held that the trial judge had not erred in admitting the evidence in question. The Court found that the trial judge had properly considered the potential prejudice of the evidence and had balanced it against its probative value. The Court also found that the excluded evidence was not as relevant as the appellants claimed, and that its exclusion did not deprive the respondents of a fair trial. The Court dismissed both the appeals and the cross-appeals.

There being no grounds for allowing the appeals or the cross-appeals, the High Court affirmed the convictions of the respondents and dismissed the appeals and cross-appeals.

Orders