Regina (C'Wealth) v Baladjam [No 35]

[2008] NSWSC 1456

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 35] [2008] NSWSC 1456
HEARING DATE(S):	24/07/08
JUDGMENT DATE :	25 July 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Each application is refused and Notice of Motion dismissed.
CATCHWORDS:	CRIMINAL LAW - Conspiracy - Scope of obligation on Crown to particularise identity of co-conspirators - Fairness and particulars.
LEGISLATION CITED:	Crimes Act 1900 (NSW)
CASES CITED:	Sydney Thomas Harrison (1995) 79 A Crim R 149 Danny Mok (1987) 27 A Crim R 438 R v Baladjam [No 9] 15 April 2008
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 35] 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 35]
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 - On application by accused Baladjam
(a) Motion to exclude evidence of items found during execution of search warrant


(b) Application for further particulars

1 HIS HONOUR: This is an application brought on behalf of Omar Baladjam. Mr Buscombe and Mr Pontello represent the accused. Counsel have provided the Court with written submissions, copy authorities and other material. There are two aspects to the present application. They are quite separate and may be dealt with separately.

First order sought

2 Mr Buscombe seeks to have excluded from the evidence to be led at trial five partially burnt pieces of paper that were located in a baby's bag situated in the lounge room of 1 Merriwa Street, Hoxton Park. These items were found during the course of the execution of a search warrant carried out on 8 November 2005 at Mr Baladjam's house. Mr Baladjam was not there at the time.

3 Mr Buscombe frankly conceded that three of the pieces of paper have an unusual flavour about them in relation to their contents. Nevertheless, he submitted that it was simply impossible to infer that the pages amounted to directions to do something consistent with the alleged conspiratorial agreement.

4 In my view, the material is relevant to facts at issue in the trial. I have in an earlier decision given today set out a repetition of the principles that apply in relation to both the tests of relevance and admissibility. The subject material satisfies me as to its relevance and, as there is no basis demonstrated for its exclusion, it is admissible.

5 There is material before the Court to show that a document examiner, Raymond Salmon, would be able to suggest at trial that two of the pages (Q 2 and Q 3) contain handwritten entries made by Mr Baladjam. This extends also to a third page, Q 6. The examiner was not able to form any conclusive view about Q 5, this being a page that has mainly figures and numbers on it. Similarly, there is writing on page Q 3 which the examiner was able to suggest may have been written by Mr Baladjam's wife, Maryam.

6 There is no need for me to set out the full details of the documents in this decision, a few examples will suffice. Q 2 appears to be a written instruction from Mr Baladjam to his wife as to how she is to behave when she goes to the Neeta Shopping Centre at Fairfield. The instructions contain the following (which gives the appropriate flavour):

“Drive up and down everywhere until you see Abdullah's bike (silver).
You'll see him parked in a spot.
Then stop - he'll pull out of the spot and you reverse in.
Unlock the boot, leave the key in...take the kids into Neeta Shopping Centre and buy something.
(You need to have a cover story as to why your there and what your buying. It may be something that you can't buy from around here like perhaps a top or skirt. You don't have to actually buy anything. Just pop into a shop as though that's the reason your there. Just in case your followed.)”

7 The instructions continue on Q 3 and contain the following:

“If your being followed 100 percent then leave your headlights on when you enter the car park, but don't stop at us, just keep going around.”

8 This page concludes:

“Now you write what you are to do.”

9 There is a diagram of this car showing where the car is to be driven and where it is to wait. It also shows the headlights on. Mr Baladjam's wife apparently has written on this page:

“Can I get in from here. When I reverse in the space, will he be waiting near his bike at another spot or near me and kids? They'll say 'Oh, that looks like Uncle Abdullah's.'“

10 On page Q 4 there appears to be handwritten entries by Mr Baladjam's wife repeating in her own words the instructions she has been given. It finishes:

“Pretend to drop handbag near wheel to pick up the key - not obvious.
Get in, go home.”

11 Q5 is a sheet mainly with calculations and figures on it. It includes a reference to "bags" and "pipes". The final document (Q6) is headed "lose my tails" and appears to be in the nature of a "to do" list although what the "stuff" is that is referred to in several places on the page is not made clear.

12 The Crown accepts that it cannot precisely prove from the documents itself the ultimate task set by the instructions given by Mr Baladjam to his wife. I accept the Crown submission that it is not necessary that this be manifest from the documents. It may be that they are instructions related to Mr Baladjam's wife purchasing something secretly. It may be that the purchase had been made by Mr Baladjam and was to be secreted into the car while his wife was shopping. There may have been other activities of a covert nature contemplated by the instructions.

13 The Crown case makes it clear, in a very detailed fashion, that at trial will be a significant number of activities engaged in by Baladjam that are said to be in furtherance of the alleged conspiracy. Secondly, there will be evidence of a number of actions carried out by Baladjam which allegedly reflect covert behaviour in an endeavour to avoid surveillance. These include, for example, his activities on 22 September 2005 at Pendle Hill (CCS paras 200 and 202). There are examples of Baladjam warning others about surveillance (CCS para 305). Indeed, when he was arrested there was a notebook in his backpack which had the registration numbers of cars which had been carrying out surveillance on him (CCS 364). There were also a considerable number of instances where, according to the Crown case, Baladjam was using a code which in reality related to the covert purchase of items in connection with the conspiracy.

14 The Crown case does not assert that Mr Baladjam's wife is a conspirator. The Crown case, however, does include a paragraph (CCS 348) where it is alleged that she has purchased “end caps” in early November 2005. The Crown case suggests that material of this kind was being sought by Baladjam and others at the time to conceal and secrete ammunition and other items acquired in connection with the conspiracy.

15 In my opinion, the Crown is entitled to go to the jury on the basis that the handwritten material is relevant as part of its circumstantial case from which, together with other material in the Crown case, an inference can be drawn that covert activities were being directed by Baladjam in connection with the conspiracy. This is so even where the Crown cannot precisely identify what the subject matter of the covert instructions was. At the very least the material is relevant to place alongside other material in the Crown case to rebut a suggestion that other activities of Baladjam were innocent and had nothing to do with the alleged conspiracy.

16 Q 5 may also go before the jury on the basis that it relates in some way to the secretion of weapons in a pipe or pipes. Q 6 is very opaque, as the Crown concedes, but, again, it may be seen as a "to do" list in connection, in a non-specific way, with the conspiracy.

17 With all due respect, I do not accept Mr Buscombe's submission that the Crown must identify precisely the relationship of any document found in the possession of the accused with a precisely identified and specific aspect of the conspiracy revealed in its full colour by material within the document or item itself. The pages, burnt and partly destroyed, are plainly relevant to the Crown circumstantial case and to the defence likely to be raised by Mr Baladjam.

Second order sought

18 Mr Buscombe has filed by leave a notice of motion dated 21 July 2008. In it, the following order is sought:

“The Crown, within 14 days, advise the legal representatives of the accused Mr Baladjam whether it alleges that any or all of the following persons were members of the conspiracy alleged in the indictment: Talal Hamdan, Youseff Rahman, Bilal Awad, Rodney Avioni and Daniel Baladjam.”

19 On 12 May 2008, Mr Baladjam's legal representatives had written to the Crown requesting that they be informed whether any of those persons were involved in the conspiracy. The Crown replied on 26 May 2008 indicating that, in its view, the Crown was not required to identify those persons who may or may not fall into the category of unnamed co-conspirators. Where persons other than the accused had been identified by name, and their actions detailed, the Crown, it was submitted, was not further obliged to categorise their role.

20 This correspondence sufficiently identifies the dispute between the parties. Mr Buscombe placed particular reliance on the decision of the New South Wales Court of Criminal Appeal in Danny Mok (1987) 27 A Crim R 438. In that case, the appellant and the accused were jointly tried on a charge of conspiring "with each other and with divers other persons" to supply heroin. Particulars of the alleged conspiracy were not supplied prior to the trial, nor was the precise membership of the conspiracy identified by the Prosecutor in his opening address. It appeared, however, that the Crown was essentially relying on a conspiracy between the appellant and one accused only. There was evidence of participation by a third person, but in terms which related to a two-person conspiracy. However, when it came to closing address, the Prosecutor purported to rely upon a three-person conspiracy involving the identified third person. (There was in fact a substantial difference between the two conspiracies, and this may well have called for different defences.) The trial judge, over objection, left “the three-person conspiracy” to the jury as the Crown case.

21 The Court of Criminal Appeal held that the trial had miscarried and that a new trial should be ordered. The Court held that the Crown should identify with precision the transaction upon which it relies. The accused “should be informed of the overt acts alleged as well as the legal nature of the charge and the particular act, matter or thing alleged as the foundation of the charge”. The appellant had been denied the right to particulars of the charge against him. At 441-442 Hunt J, with whom McInerney and Allen JJ agreed said:

“In a conspiracy case, each accused is entitled to precise particulars of the persons with whom it is going to be alleged that he conspired and as to the specific scope of the conspiracy alleged. Even where particulars are not sought, it is nevertheless incumbent upon the Crown Prosecutor to give those particulars in the course of his opening address - at the latest. He is not entitled simply to open the overt acts of which particulars have been given, leaving it to the end of the evidence to select from that evidence the conspiracy which seems to be the strongest. The trial judge and the accused are left in an impossible position if the precise nature of the Crown case is not made clear from the beginning of the trial. The present case is a very good example of the sorry consequences of the Crown's failure to give proper particulars.”

22 Mr Buscombe also made reference to the appeal of Sydney Thomas Harrison (1995) 79 A Crim R 149. In that case the Crown presented an indictment which alleged that the appellant conspired with "an unknown person or persons". The appellant argued that the indictment should be quashed and the proceedings stayed. The Court held the common law does not prohibit an unknown person being particularised as a co-conspirator in an indictment for conspiracy, and that an accused person may be convicted for conspiring with a person or persons unknown. The Court also held that s 393 of the Crimes Act 1900 (NSW) (as it then stood) did not abrogate this common law principle. It was in that context that Mahoney JA said at 152:

“The courts have long been conscious of the possibility of abuse of the charge of conspiracy and care has been taken to ensure that it is not used in a manner which is oppressive to an accused person. The possibility of abuse by a charge which does not nominate any person with whom the accused is said to have conspired is apparent: It is obviously desirable that, if the name of a conspirator be known, the conspirator be named. If this be not done, a charge may be pressed the proof of which cannot readily be tested by examination and investigation of the other party to the conspiracy.”

23 (I should add that I had cause to consider these two authorities in my earlier decision in R v Baladjam [No 9] of 15 April 2008, albeit in a slightly different context to the present disputation).

24 Against the background of these two authorities, Mr Buscombe submitted that the particulars were necessary for the accused to know the scope of the conspiracy that is alleged. Secondly, it was necessary to enable a proper forensic decision to be made as to whether to adduce evidence in the accused's case. This latter argument was a reference to the possibility that the accused might wish to call one or other of the men named in the order sought in the notice of motion. How could this be done, Mr Buscombe asked, if it were unknown whether the Crown was alleging that they, or any of them, were members of the alleged conspiracy?

25 In my opinion, in the present circumstances of this matter, the Crown is not obliged to provide "particulars" as sought in the notice of motion. First, the Crown has provided the accused with a Crown case statement. This is 182 pages long and contains in excess of 400 paragraphs. In addition, it contains approximately 720 detailed footnotes. Secondly, the Crown brief contains the statements referred to in the footnotes and paragraphs of the Crown case statement. Thirdly, the defence have been separately supplied with a voluminous volume of telephone intercepts, listening device material and other material.

26 From all this material, the actual role played by each of the men in the alleged conspiracy or in events related to the alleged conspiracy is perfectly apparent. For example, there are two precise telephone intercepts on 1 and 7 November 2005 relating to Daniel Baladjam, the accused's brother. Similarly, paras 330 and 331 of the Crown case statement demonstrate that the Crown will allege that Daniel Baladjam and another man were involved in moving boxes of material from the premises of the accused Mulahalilovic on 4 November 2005. Later in the day, Daniel Baladjam drove the van which had been used from Hoxton Park towards Liverpool. In this regard, the Crown case is that Daniel Baladjam used his own registered vehicle in connection with an action in furtherance of the conspiracy. The Crown, however, is not able to say whether Daniel Baladjam was a member of the conspiracy. The particulars of his involvement are made clear by the material to which I have referred, but the Crown is simply unable to say, for example, whether he was acting as an innocent agent or whether he was paid to assist. The Crown cannot say, on the information it has, that he necessarily shared the alleged conspiratorial intentions of his brother.

27 It is sufficient to say that the defence are in possession of every single assertion made in relation each of the men named in the order sought in the notice of motion. There is no need for me to provide all the details in this decision.

28 One further example will suffice. It is somewhat at the other end of the extreme than the illustration involving Daniel Baladjam. On 20 September 2005, Baladjam had a telephone conversation with Bilal Awad in which they discussed the purchase of surveillance equipment. Baladjam asked Awad, "How did you go, bro" to which Awad replied "Brother...It's very expensive man, to be honest...cause proper surveillance like proper CCTV system is not cheap...I was quoted $800 a camera man." Baladjam then thanked Mr Awad and the conversation ended.

29 As far as I can see, this is the only reference to Mr Awad in the Crown case statement and the other material I have mentioned. That being so, it seems to me that the defence have been made well aware of the precise "involvement" (small though it is) of Mr Awad. The Crown has not asserted that Mr Awad was a member of the conspiracy. He has not been charged or indicted as a member of the conspiracy. The Crown is unable to say anything more about his relationship with Mr Baladjam, other than that which is revealed in the telephone intercept.

30 In my opinion, the principle of fairness stated in Mok’s case, when applied, has no adverse application for the present Crown position. Indeed, the situation in that case was a highly unusual one and bears no relationship to the situation in the present trial. In my opinion, it is not authority for the broad proposition advanced here by Mr Buscombe.

31 Finally, it should be noted that the indictment, in summary form, charges each of the accused in the following terms:

“Between about 8 July 2004 and 8 November 2005 at Sydney in the State of New South Wales and elsewhere did conspire with each other and divers others to do acts in preparation of a terrorist act (or acts).”

32 The indictment contains particulars of the terrorist act or acts alleged by the Crown. The Crown case statement and other documents to which I have made reference give the fullest possible information to the defence as to the nature of the case they will have to meet. In my opinion, none of the authorities to which Mr Buscombe has referred me require, in the circumstances of this matter, that the Crown be obliged to state whether it alleges that any of the five named persons were members of the conspiracy alleged in the indictment. In my opinion, the position taken in this regard by the Crown, in the light of the voluminous particulars of material supplied, are sufficient at this stage to satisfy the principles of fairness. Whether Mr Buscombe, or any of the other defendants, wish to call any of the five named persons in the trial is entirely a matter for them. It is obvious enough, however, that if the defence were to call, for example, Daniel Baladjam to give evidence that his activities on 4 November 2005 were innocent and unconnected with any alleged conspiracy, the Crown could legitimately cross-examine him to suggest to the contrary. To do so would not alter the nature of the Crown case as particularised nor would it enlarge or alter the scope of the conspiracy alleged by the Crown. If such a situation were to arise, improbable as it might presently seem, the Court would be in a position to intervene, even if, at worst, that had drastic consequences for the continuation of the trial.

33 For these reasons, I am not satisfied that Mr Buscombe has presently made good his claim to the orders sought in the notice of motion.

34 The order I make is that each application is refused and the notice of motion is dismissed.

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