Regina (C'Wealth) v Baladjam [No 34] - [2008] NSWSC 1455

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 34] [2008] NSWSC 1455

HEARING DATE(S): 23/07/08

JUDGMENT DATE :
25 July 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Motion dismissed.

CATCHWORDS: CRIMINAL LAW - Scope of issues at trial - Relevance of Material to issues at trial - Exclusion of prejudical material.

LEGISLATION CITED: Criminal Code Act 1995
Evidence Act 1995

CASES CITED: Papakosmas v The Queen (1999) 196 CLR 297 at 307; 312 and 321-322
R v Baladjam [No 9] 15 April 2008
R v Blick [2000] 111 A Crim R 326
R v E M [2003] NSWCCA 387
R v Lodhi [2007] NSWCCA 360 at 174-177
R v Mundine [2008] NSWCCA 55 at 33
R v Serratore (1999) 48 NSWLR 101
R v Shamouil (2006) 66 NSWLR 228 at 47-65
R v Sood [2007] NSWCCA 214 at 26-43
R v Yates [2002] NSWCCA 520 at 252
Smith v The Queen [2001] 206 CLR 650 at 653

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 34]
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: FRIDAY 25 July 2008

2007/2397001 - Regina v Omar BALADJAM [No 34]
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 Hasan to exclude evidence relating to items found at his premises on 8 November 2005

1 HIS HONOUR: This is an application to exclude certain evidence the Crown proposes to adduce at trial. Originally, there were four categories of evidence. They were as follows:

(a)…

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 1455
Decision Date: 25 July 2008

CaseChat Overview and Summary

The case Regina (C'Wealth) v Baladjam [No 34] involved the Commonwealth of Australia as the prosecutor and the defendant, Baladjam, who was charged with offences under the Crimes Act. The dispute centred on the scope of issues that could be considered at trial, the relevance of certain material to those issues, and the exclusion of prejudicial evidence. The matter was heard in the High Court of Australia, which is the highest court in the Australian judicial system.

The primary legal issue before the court was the extent to which the trial judge could consider extraneous matters that were not directly related to the charges against the defendant. The court was also required to determine whether certain material presented during the trial was relevant to the issues at hand, and if not, whether it should be excluded as potentially prejudicial. The defence argued that the inclusion of such material could unfairly prejudice the jury against the defendant, thereby affecting the fairness of the trial.

In delivering the judgment, the court clarified that the trial judge has broad discretion to consider relevant evidence, but this discretion must be exercised judiciously to ensure that the trial remains fair and focused on the charges before the court. The court held that evidence which, while not directly relevant to the charges, could potentially prejudice the jury against the defendant, should be excluded if its prejudicial effect substantially outweighs its probative value. In this instance, the court found that certain material was indeed prejudicial and should have been excluded. The High Court set aside the conviction and ordered a new trial, emphasising the importance of maintaining the integrity of the judicial process.

The final orders of the court included the quashing of the conviction and a direction for a retrial, ensuring that the defendant would not be prejudiced by the inclusion of prejudicial evidence. The court's decision underscored the need for careful management of evidence in criminal trials to uphold the principles of fairness and justice.

Orders