Regina (C'Wealth) v Baladjam [No 14] - [2008] NSWSC 1438

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 14] [2008] NSWSC 1438

HEARING DATE(S): 28/04/08

JUDGMENT DATE :
2 May 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: I decline to exclude the evidence of Moustafa Cheikho's identification.

CATCHWORDS: CRIMINAL LAW - Application to exclude evidence under s 138 of Evidence Act - No illegality or impropriety - Relationship between ASIO and AFP - Crimes Act (C'Wealth) - s 3ZO - Relevant factors under s 138 Evidence Act 1995

LEGISLATION CITED: Evidence Act 1995
Commonwealth Crimes Act 1914 (Cth)

CASES CITED: DPP v AM [2006] 161 A Crim R 219
R v Alexander (1991) 45 CLR 395
R v Baladjam & Ors [No 7}, unreported 15 April 2008
R v Coombe NSWCCA , Hunt CJ, Smart and McInerney JJ, 24 April 1997 - unreported BC9701438
R v Coulstock (1998) 99 A Crim R 143
R v Cornwell [2003] 57 NSWLR 82
R v Petroulias (No 8) [2007] NSWSC 82
R v Petroulias (No 9) [2007] NSWSC 84
Robinson v Woolworths Limited [2005] 64 NSWLR 612

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 14]
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: FRIDAY 2 May 2008

2007/2397001 - Regina v Omar BALADJAM [No 14]
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 - Application to exclude evidence under s 138 of Evidence Act (Identification of Moustafa Cheikho)

1 HIS HONOUR: This is an application made on behalf of Moustafa Cheikho…

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.

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Details

Case: [2008] NSWSC 1438
Decision Date: 2 May 2008

CaseChat Overview and Summary

In the case of Regina (C'Wealth) v Baladjam, the defendant applied to the Federal Court to exclude evidence obtained through interactions between the Australian Security Intelligence Organisation (ASIO) and the Australian Federal Police (AFP), arguing that the process was tainted by illegality or impropriety. The case hinged on whether the evidence gathered should be excluded under section 138 of the Evidence Act 1995 due to any impropriety or illegality in its acquisition. The legal issues before the court were to determine if the actions of ASIO and AFP amounted to any illegality or impropriety that would render the evidence inadmissible and whether the factors under section 138 of the Evidence Act were satisfied.

The court examined the nature of the relationship and operations between ASIO and AFP, and how these interactions unfolded in the context of this case. It was established that the cooperation between the two agencies was conducted within the parameters of their respective mandates and was not tainted by any illegality or impropriety. The court held that there was no evidence to suggest that the information was obtained in a manner that would warrant exclusion under section 138 of the Evidence Act. Furthermore, the court considered the relevant factors, including the nature of the information, the means by which it was obtained, and the potential prejudice to the defendant, concluding that none of these factors warranted the exclusion of the evidence.

Consequently, the application to exclude the evidence was dismissed. The court found that the evidence was lawfully obtained and admissible. The decision underscored the importance of the legal framework governing intelligence and law enforcement agencies, and confirmed that the evidence obtained through proper cooperation between ASIO and AFP was not subject to exclusion. This ruling is significant in delineating the boundaries of admissible evidence in cases involving intelligence agencies and the police.

Orders