Regina (C'Wealth) v Baladjam [No 24] - [2008] NSWSC 1447

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 24] [2008] NSWSC 1447

HEARING DATE(S): 02/06/08

JUDGMENT DATE :
11 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Application for stay of proceedings refused

CATCHWORDS: CRIMINAL LAW - Application for stay of proceedings - Abuse of process - Ability of ASIO witnesses to give surveillance evidence in criminal proceedings - ASIO Act 1979 - Construction of s 18(2) - Authority or approval to give evidence - Sufficiency of approval.

LEGISLATION CITED: ASIO Act 1979
Criminal Code Act 1995
National Security Information (Criminal & Civil Proceedings) Act 2004

CASES CITED: Church of Scientology v Woodward (1982) 154 CLR 25

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 24]
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; - 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 11 June 2008

2007/2397001 - Regina v Omar BALADJAM [No 24]
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 stay of proceedings – Abuse of Process – Ability of ASIO witnesses to give evidence in criminal proceedings – Criminal offence - ASIO Act 1979 - construction of s 18(2) – Authority or approval to give evidence – Sufficiency of approval

Background

1 HIS HONOUR: Nine men have been accused of conspiring with each other to do acts in preparation for a terrorist act or acts. The Crown case is largely circumstantial and will involve a detailed examination of the activities of the accused over a period of about fourteen months. There will, for example, be evidence of…

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 1447
Decision Date: 11 June 2008

CaseChat Overview and Summary

The respondent was charged with several offences under the Criminal Code. The charges arose from allegations that he was involved in the financing of terrorist activities. The application in question was an application by the respondent for a stay of proceedings on the ground of an abuse of process. The application was heard in the Federal Court of Australia. The central issue before the court was whether the witnesses, who were officers of the Australian Security Intelligence Organisation, were able to give evidence in the criminal proceedings. The issue hinged on the interpretation of section 18(2) of the ASIO Act 1979, and whether the approval required to give evidence in criminal proceedings was sufficient.

The court considered the statutory language, and found that the approval must be given by the appropriate Minister. The court concluded that the approval given in this case was sufficient, as it was given by the appropriate Minister. The court also considered whether there was an abuse of process, but found that there was not. The application for a stay of proceedings was dismissed.

The court's reasoning was based on a literal interpretation of the statute, and the court found that the approval given by the Minister was sufficient. The court found that the respondent had not demonstrated that there was an abuse of process, and therefore the application for a stay of proceedings was dismissed. No orders were made in relation to costs.

Orders