Regina (C'Wealth) v Baladjam [No 32] - [2008] NSWSC 1454

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 32] [2008] NSWSC 1454

HEARING DATE(S): 16/07/08

JUDGMENT DATE :
22 July 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Motion dismissed.

CATCHWORDS: CRIMINAL LAW -Refusal to take part in identification parade - Relevance - CRIMINAL LAW - Failure to caution accused before questioning - Failure to inform suspect of right to contact police friend or relative - Extremist statement in terrorism trial - Scope and Relevance.

LEGISLATION CITED: Crimes Act (Cth) 1914
Evidence Act 1995

CASES CITED: McCarthy & Ryan (1993) 71 A Crim R 395 at 404
R v Andrew Timothy Davies [2005] 11 VR 314; [2005] 153 A Crim R 217
Petty v The Queen (1991) 173 CLR 95
R v Reeves (1992) 29 NSWLR 109
R v Ronen (unreported) 12 August and 10 November 2004

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 32]
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 22 July 2008

2007/2397001 - Regina v Omar BALADJAM [No 32]
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 by accused Jamal to exclude evidence – Identification parade – Conversation held without caution – Accused not advised of rights

1 HIS HONOUR: There are before the Court a number of applications to exclude evidence. These applications are brought on behalf of Omar Jamal.

2 The first issue relates to three questions and answers (Q86-Q88 inclusive) in a record of interview between Detective Sergeant…

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 1454
Decision Date: 22 July 2008

CaseChat Overview and Summary

The case of Regina (C'Wealth) v Baladjam [No 32] involved the accused, Baladjam, who was on trial for various terrorism-related offences. The dispute centred around the admissibility of evidence obtained from Baladjam's refusal to participate in an identification parade, as well as the failure to caution him before questioning and to inform him of his right to contact a police friend or relative. Additionally, an extremist statement made by Baladjam during the trial was contested regarding its scope and relevance. The case was heard in a higher court in Australia, which was tasked with determining the admissibility and impact of these pieces of evidence on the trial.

The court had to address several legal issues. Firstly, it needed to assess the relevance and admissibility of evidence derived from Baladjam's refusal to participate in the identification parade. Secondly, the court examined the consequences of the failure to caution Baladjam before questioning and to inform him of his right to contact a police friend or relative. Lastly, the court evaluated the scope and relevance of the extremist statement made by Baladjam during the trial, considering whether it was admissible and how it impacted the overall case against him.

In reaching its decision, the court considered the principles of fairness and the rights of the accused under Australian criminal procedure laws. It determined that evidence stemming from Baladjam's refusal to participate in the identification parade was relevant and admissible, as it was part of the overall context of the investigation. Regarding the failure to caution Baladjam and inform him of his rights, the court found that while procedural errors had occurred, they did not significantly prejudice the fairness of the trial. The extremist statement made by Baladjam was deemed relevant and admissible, as it provided insight into his mindset and potential motivations, thereby strengthening the prosecution's case.

The court concluded that the evidence in question, despite some procedural shortcomings, was admissible and did not undermine the overall fairness of the trial. The final orders of the court were to allow the evidence to be presented to the jury and to proceed with the trial under the existing conditions.

Orders