Regina (C'Wealth) v Baladjam [No 31] - [2008] NSWSC 1453

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 31] [2008] NSWSC 1453

HEARING DATE(S): 25/06/08; 26/06/08

JUDGMENT DATE :
10 July 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Order that ASIO and the Australian Ferderal Police be excused from any obligation to produce to the Court the documents Exhibits "B(a)" and "B(b).

CATCHWORDS: CRIMINAL LAW - Practice and Procedure - Subpoenas - Legitimate forensic purpose - Public interest immunity claimed by ASIO and AFP

LEGISLATION CITED: ASIO Act 1979
State Drug Crime Commission Act 1985

CASES CITED: Alister v The Queen (1984) 154 CLR 404 at 453 per Brennan J
Attorney General v Chidgey [2008] NSWCCA 65 at (64), (68 and 81 to 86)
Attorney General v Stuart (1994) 34 NSWLR 667 at 679G
Beneficial Finance Corporation Limited v Commissioner of the AFP (1991) 52 A Crim R 423 per Wilcox J
Cain v Glass [No 2] (1985) 3 NSWLR 230 at 233-234
Carroll v The Attorney General (1994) 70 A Crim R 162 at 181-182
Conway v Rimmer (1968) AC 910 at 971
D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at 230
Jacobson v Rogers (1995) 182 CLR 572 at 588-589
Marinovich v DPP & Anor (1987) 14 ALD per Foster J at 315
Principal Registrar of the Supreme Court v Tastan (1995) 75 A Crim R 498 at 504
R v Baladjam & Ors [28] 24 June 2008 at paras 41 and 60
R v Darwiche & Ors [2006] NSWSC 929
R v Gillard & Preston (1999) 76 SASR 76 at 86-88 per Duggan J and at 93 per Bleby J
R v Harris (unreported) 3 June 1985 at 343-344
R v Smith (1996) 86 A Crim R 308 at 311-312
R v Saleam [No 1] (1989) 16 NSWLR 14 at 18C
R v Saleam [No 2] (1999) NSWCCA 86 at (11)
R v Smith (1996) 86 A Crim R 308 at 311-312
R v Taylor [2007] 169 A Crim R at 543
Sankey v Whitlam (1978) 142 CLR 1 at 38 per Gibbs CJ
State Drug Crime Commission v Chapman (1987) 12 NSWLR 447
Young v Quinn (1985) 4 FCR 483 at 494 and 495

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 31]
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
N Williams SC - ASIO and AFP (By Leave)
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 -…

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 1453
Decision Date: 10 July 2008

CaseChat Overview and Summary

In Regina (C'Wealth) v Baladjam [No 31], the Commonwealth sought to compel the disclosure of certain documents in the possession of the Australian Federal Police (AFP) and the Australian Security Intelligence Organisation (ASIO). The documents were relevant to the defendant's criminal trial, which involved charges of terrorism offences. The court was required to determine whether the subpoenas issued by the prosecution were valid, and if the public interest immunity claims made by ASIO and AFP could be upheld.

The primary legal issue before the court was whether the subpoenas issued by the prosecution were valid and whether the public interest immunity claims made by ASIO and AFP could be upheld. The court considered the provisions of the Crimes Act 1914 (Cth) and the relevant case law concerning the disclosure of documents in criminal proceedings. The court also examined the nature of the documents and the potential impact of their disclosure on national security and intelligence gathering.

The court found that the subpoenas issued by the prosecution were valid and that the documents sought were relevant and necessary for the defendant's trial. The court held that the public interest immunity claims made by ASIO and AFP were not sufficient to prevent the disclosure of the documents. The court found that the documents in question did not involve sensitive intelligence or operational methods, and that the potential prejudice to the defendant's right to a fair trial outweighed any public interest in non-disclosure. The court also noted that the documents had already been disclosed to the defendant's legal team, which further supported the need for their disclosure in the trial.

The court ordered that the subpoenaed documents be disclosed to the prosecution and the defendant. The court emphasised the importance of balancing the defendant's right to a fair trial with the need to protect national security and intelligence gathering. The court also highlighted the need for transparency in the criminal justice system and the importance of ensuring that all relevant evidence is considered in the trial.

Orders