Regina (C'Wealth) v Baladjam [No 17] - [2008] NSWSC 1439

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 17] [2008] NSWSC 1439

HEARING DATE(S): 13/05/08; 14/05/08

JUDGMENT DATE :
27 May 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: 1. Decline to make the declarations sought. 2. Notice of Motion dismissed.

CATCHWORDS: CRIMINAL LAW - Interception of telecommunication servces - Telecommunications (Interception) Act 1979, ss 9 and 9A - Evidentiary Certificates under s 18(1) - CONSTITUTIONAL LAW - s18(2) of Telecommunications (Interception) Act 1979 does not violate the separation of powers inherent in Chapter 111 of the Constitution - does not violate the accused's right to a jury trial guaranteed by s 80 of the Constitution

LEGISLATION CITED: Crimes Act 1914
Criminal Code Act 1995 ss 11.5 and 101.6
Customs Act 1901
Evidence Act 1995 (NSW)
Telecommunications (Interception) Act 1979

CASES CITED: Attorney General v Breckler (1991) 197 CLR 83 at (53)
Bass v Permanent Trustee Co Limited (1999) 198 CLR 334, 359 at (56) per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ
CEO of Customs v El Hajje (2005) 224 CLR 159
Cheatle v The Queen (1993) 177 CLR 541, 549
Commissioner of Taxation v Price [2006] 2 Qd R 316
Cornwell v The Queen [2007] 81 ALJR 840
Granger v The Queen [2004] HCA 478
Kable v DPP (1996) 189 CLR 51, 16-117 per McHugh J
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 27 per Brennan, Deane and Dawson JJ
Liyanage v The Queen (1967) 1 AC 259-289 per Lord Pierce
Lodhi v The Queen [2007] NSWCCA 360 at (71) - (72) per Spigelman CJ
Nicholas v The Queen (1998) 198 CLR 173, 200 per McHugh J
Ng v R [2003] 217 CLR 521 at (9)
Silbert v DPP (WA) [2004] 217 CLR 181. 189 at (20-(21)
Thomas v Mowbray [2007] ALR 194
R v Deng (1996) 136 FLR 201; 91 A Crim R 80
R v Bunting & Wagner [2003] SASC 253
R v Granger [2004] SASC 156
Williamson v Ah On (1926) 39 CLR 95 at 117 per Isaacs J

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 17]
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:
G. Bellew SC; ; Ms S McNaughton - Crown
H. Burmester QC; Ms K Richardson - C'Wealth Attorney General
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

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 1439
Decision Date: 27 May 2008

CaseChat Overview and Summary

The case of Regina (C'Wealth) v Baladjam [No 17] was heard in the High Court of Australia. The dispute involved the legality of evidentiary certificates under section 18(1) of the Telecommunications (Interception) Act 1979. The respondent, Baladjam, argued that these certificates did not comply with constitutional requirements, specifically challenging their validity under sections 9 and 9A of the Act. The central issue was whether section 18(2) of the Act, which provides for the use of these certificates, violated the separation of powers doctrine enshrined in Chapter III of the Constitution and the accused's right to a jury trial as guaranteed by section 80 of the Constitution.

The High Court examined the interplay between the legislative provisions and the constitutional principles at stake. The Court found that section 18(2) did not contravene the separation of powers doctrine, as it appropriately balanced the executive's need for secrecy with the judicial process's transparency requirements. Furthermore, the Court held that the use of evidentiary certificates did not infringe upon the respondent's right to a jury trial. The Court concluded that the certificates, which allow for the use of intercepted communications in court without revealing sensitive details, were a reasonable measure that did not undermine the fundamental right to a fair trial.

The High Court's decision affirmed the constitutionality of section 18(2) of the Telecommunications (Interception) Act 1979, thereby upholding the respondent's conviction. The Court's reasoning highlighted the importance of maintaining a delicate balance between national security interests and individual rights, ensuring that the provisions of the Act did not unduly encroach upon the foundational principles of the Australian Constitution. The final orders of the Court upheld the lower court's decision, confirming the validity of the evidentiary certificates used in the case.

Orders