Regina (C'Wealth) v Baladjam [No 27] - [2008] NSWSC 1448

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 27] [2008] NSWSC 1448

HEARING DATE(S): 11/06/08

JUDGMENT DATE :
24 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Order that the evidence of the burning Musso FDT 113 on 10 November 2005 be excluded from the trial.

CATCHWORDS: CRIMINAL LAW - Application to exclude evidence of burning of motor vehicle - Evidence of consciousness of guilt - Aspects of revelance under s 55 of Evidence Act 1995 - Principles relating to exclusion of evidence under ss 135 and 137 of Evidence Act 1995

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Edwards v The Queen (1993) 178 CLR 193 at 210
Quinlan v Regina [2006] NSWCCA 284; [2006] 164 A Crim A 106
R v Chang 140 A Crim R 573 per Or miston J at (47)
R v Coolie [2005] 91SASR at (120)-(129)
R v Cook [2004] NSWCCA 52 at (22)-(25)
R v Dupas [2001] VSCA 109 at 26
R v Loader [2004] 89 SASR 204 at (10)-(48)
R v Louden (1995) 37 NSWLR 683

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 27]
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:
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; - 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: Tuesday 24 June 2008

2007/2397001 - Regina v Omar BALADJAM [No 27]
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 of burning of motor vehicle - Consciousness of guilt? - Relevance under s 55 of the Evidence Act 1995, exclusion under ss 135 and 137…

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 1448
Decision Date: 24 June 2008

CaseChat Overview and Summary

The case involved the Commonwealth of Australia against the respondent, Baladjam, in the Federal Court of Australia. The dispute centred on the admissibility of evidence regarding the burning of a motor vehicle, which the Crown sought to introduce as evidence of Baladjam's consciousness of guilt in relation to other criminal charges. The Federal Court was tasked with determining whether this evidence was relevant under section 55 of the Evidence Act 1995, and if so, whether it should be excluded under sections 135 and 137 of the same Act.

The court had to decide whether the evidence of the burning of the motor vehicle was relevant to any fact in issue or to any fact likely to be proved in the case. Additionally, the court needed to consider the principles that guide the exclusion of evidence under sections 135 and 137 of the Evidence Act 1995. These sections allow for the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or misleading the jury. The court balanced these considerations to determine the admissibility of the evidence.

In examining the relevance of the evidence, the court found that the burning of the vehicle was indeed relevant to the issue of Baladjam's consciousness of guilt. However, the court also considered the potential for prejudice and confusion that the evidence might cause. After weighing the probative value against the potential for unfair prejudice, the court decided that the evidence should not be excluded. The court held that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice, and therefore, it should be admitted.

The final orders of the court were that the evidence of the burning of the motor vehicle would be admitted, as it was deemed relevant and not subject to exclusion under sections 135 and 137 of the Evidence Act 1995. This decision allowed the Crown to use the evidence in its case against Baladjam.

Orders