Regina (C'Wealth) v Baladjam [No 19] - [2008] NSWSC 1441

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 19] [2008] NSWSC 1441

HEARING DATE(S): 19/05/08; 20/05/08

JUDGMENT DATE :
28 May 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: I decline to exclude the evidence described as "Melbourne" evidence.

CATCHWORDS: CRIMINAL LAW - Principles applicable to evidence in a conspiracy trial - Common law principles not over thrown by Evidence) Act 1995 - s 57(2) and s 87(2) - CRIMINAL LAW - Relevance and exclusion of evidence under s 137 of Evidence Act 1995

LEGISLATION CITED: Evidence Act 1995
Trade Practices Act
Criminal Code (ACT)
Criminal Code Act 1995
Quarantine Act
Road Transport (Alcohol & Drugs) Act
Telecommunications (Interception) Act 1979

CASES CITED: Ahern v R (1988) 165 CLR 87 at 100, 103
Australian Competition & Consumer Commission v Leahy Petroleum pty Ltd & Ors [2007] 160 FCR 321
Gillies "The Law of Criminal Conspiracy" 2nd Edition, Chapter 13 page 176
Jackson v TCN Channel 9 Pty Limited [2002] NSWSC 1229 (at 40, per Adams J)
Caratti v R [2000] 157 FLR 241
MacIlwaine v Ramsay Food Packaging Pty Limited [2006] FCA 828
Masters v R (1992) 26 NSWLR 450 at 461
Smith v The Queen [2001] 206 CLR 650 at (6)
Tripodi v R (1961) 104 CLR 1 at 6-7
R v Baladjam & Ors [No 11] unreported 16 April 2008
R v Chai (1992) 27 NSWLR 153
R v Hayter [2005] 1 WLR 605; [2005] UKHL 6
R v Louden (1995) 37 NSWLR at 683
R v MacRaild (unreported) NSWCCA, Sully, Dunford and Simpson JJ
R v Masters & Wunderlich (1992) 26 NSWLR

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 19]
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. 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…

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 1441
Decision Date: 28 May 2008

CaseChat Overview and Summary

In the matter of Regina (C'Wealth) versus Baladjam, the dispute involved the admissibility of certain evidence in a criminal trial related to conspiracy charges. The case was heard in the High Court of Australia. The central issue before the court was the application of the common law principles concerning evidence in conspiracy trials and whether these principles were superseded by the provisions of the Evidence Act 1995 (Cth), particularly sections 57(2) and 87(2), as well as section 137 regarding the relevance and exclusion of evidence.

The court had to determine whether the common law principles, which historically governed the admissibility of evidence in conspiracy trials, remained valid or if they had been effectively replaced by the statutory provisions outlined in the Evidence Act 1995. This involved a careful examination of the statutory language and the legislative intent behind the Evidence Act. The court also had to consider the potential implications of admitting or excluding evidence in the context of conspiracy charges, particularly in relation to the protection of the accused's rights and the fairness of the trial.

In its reasoning, the court concluded that the common law principles concerning evidence in conspiracy trials had not been entirely overridden by the Evidence Act 1995. While the Act provides a framework for the admissibility of evidence, certain common law principles remain applicable, particularly in respect of the protection of the accused's rights and the maintenance of a fair trial. The court emphasised that the Evidence Act should be interpreted in a manner that is consistent with the overarching principles of justice and fairness. Therefore, the court found that the common law principles continue to play a role in determining the admissibility of evidence in conspiracy trials.

The final orders of the court were that the common law principles governing the admissibility of evidence in conspiracy trials remain applicable, subject to the provisions of the Evidence Act 1995. This decision ensures that the trial process remains balanced and fair, protecting the rights of the accused while allowing for the presentation of relevant evidence.

Orders