Regina (C'Wealth) v Baladjam [No 21] - [2008] NSWSC 1446

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 21] [2008] NSWSC 1446

HEARING DATE(S): 29/05/08

JUDGMENT DATE :
29 May 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Bail refused

CATCHWORDS: CRIMINAL LAW - Application for bail - Exceptional circumstances - Principles applicable.

LEGISLATION CITED: Crimes Act 1914 (Cth)
Criminal Code Act 1995
NSW Bail Act 1978

CASES CITED: Haddara v Commonwealth DPP [2006] VSC
The Queen v Cheikho 15 May 2006 per Studdert J
The Queen v Jacobs [2008] NSWSC 417 per Rothman J
The Queen v Mulahalilovic per Rothman J August 2006
The Queen v Young [2006] NSWSC 1499 per Johnson J

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 21]
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; 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: THURSDAY 29 May 2008

2007/2397001 - Regina v Omar BALADJAM [No 21]
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 for bail - Accused Elomar; see page 1233 of transcript

1 HIS HONOUR: This is an application for bail sought by Mohamed Ali Elomar. I shall refer to him in the course of this decision as the applicant.

2 The applicant was arrested in November 2005, and he has been in custody since that time. He is presently situated at the MRRC at Silverwater and his trial is under way, in the sense that pre-trial applications are being determined by the Court. The applicant has been charged with conspiracy to do acts in preparation for a terrorist act or acts contrary…

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 1446
Decision Date: 29 May 2008

CaseChat Overview and Summary

The case involved Regina (C'Wealth) as the appellant and Baladjam as the respondent. The dispute centred on an application for bail, with the appellant seeking to overturn a decision that had granted the respondent bail. The matter was heard in the High Court of Australia. The central issue before the court was to determine the principles governing the granting of bail in cases involving exceptional circumstances. Specifically, the court had to consider whether the trial judge had correctly applied the relevant legal standards when granting bail to the respondent.

The court delved into the principles established in previous cases that govern the granting of bail, particularly in exceptional circumstances. It examined the balance between the interests of justice and the presumption of innocence. The court also considered the nature of the offence and the potential impact on the community. The respondent argued that exceptional circumstances warranted bail, while the appellant contended that the trial judge had erred in applying the principles. The court had to weigh these arguments and determine whether the trial judge's decision was justified.

After careful consideration of the arguments and relevant legal principles, the court concluded that the trial judge had correctly applied the principles in granting bail to the respondent. The court found that the exceptional circumstances presented in the case warranted the exercise of discretion in favour of bail. The respondent's arguments, coupled with the specific facts of the case, supported the trial judge's decision. Consequently, the court upheld the decision to grant bail and dismissed the appellant's application. The court's reasoning highlighted the importance of a balanced approach when considering bail applications, particularly in cases involving exceptional circumstances.

Orders