Regina (C'Wealth) v Baladjam [No 14]

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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…

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Details
Case
[2008] NSWSC 1438
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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