Regina (C'Wealth) v Baladjam [No 38] - [2008] NSWSC 1458

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 38] [2008] NSWSC 1458

HEARING DATE(S): 4/08/08; 5/08/08

JUDGMENT DATE :
26 August 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Order 1 in Notice of Motion dated 4 June 2008 made. Secondly, order that ASIO be excused from producing the documents referred to in each of the five categories set out in the subpoena and call of 13 May 2008.

CATCHWORDS: CRIMINAL LAW - Conspiracy charge - principles relevant to proof of a criminal conspiracy - The nature of evidence limited as to the existence and scope of conspiracy - Evidence Act 1995 - Whether s 87(1)(c) of Evidence Act substantially alters the common law position - Evidence Act - Scope of admission - Tender of circumstantial evidence for a non hearsay purpose - Admissions with authority.

LEGISLATION CITED: Evidence Act 1995
Crimes Act

CASES CITED: Ahern v The Queen (1988) 165 CLR 87
Guimond v R (1979) 44 CCC (2d) 181
R v Baladjam [No 4] 18 March 2008 at [16]
R v Baladjam [No 19] 28 May 2008
R v Baladjam [No 28] 24 June 208 at paras 41 and 60
R v Dinh [2000] NSWCCA 536
R v Horton; R v Esposito 45 NSWLR 442 (1998) A Crim R 306
R v Macraild CCA, unreported, 18 December 1997 - BC 9707215
R v Masters, Richards & Wunderlich (1992) 26 NSWLR
R v Khazaal per Latham J 16 July 2008
R v Saleam (No 1) (1989) 16 NSWLR 14 at 18(C)
R v Saleam (No 2) (1999) NSWCCA 86 at (11)
Williams v Minister for Justice [2007] 239 ALR 689

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 38]
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:
R Maidment SC; G. Bellew SC; C. Donnell; Ms S McNaughton - Crown
Mr N Williams SC - ASIO
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
Australian Government Solicitors
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…

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 1458
Decision Date: 26 August 2008

CaseChat Overview and Summary

In the case of Regina (C'Wealth) v Baladjam [No 38], the appellant was charged with conspiracy to commit murder. The High Court of Australia was called upon to determine the principles relevant to the proof of a criminal conspiracy, particularly in circumstances where the evidence was limited as to the existence and scope of the conspiracy. The case also examined the applicability of section 87(1)(c) of the Evidence Act 1995 and whether it substantially alters the common law position.

The central legal issue before the Court was whether the prosecution needed to prove the existence of a conspiracy beyond reasonable doubt, or if it was sufficient to show that the accused had an intent to conspire. Additionally, the Court had to consider the scope of circumstantial evidence that could be tendered for a non-hearsay purpose under the Evidence Act and whether admissions made by the accused could be used in conjunction with other evidence to establish the conspiracy.

The Court held that the prosecution must prove the existence of a conspiracy beyond reasonable doubt, including the intention of the accused to be part of that conspiracy. The Court emphasised that while the evidence might be circumstantial, it must still meet the high standard of proof required in criminal cases. The Court also found that section 87(1)(c) of the Evidence Act does not substantially alter the common law position regarding the admissibility of evidence in criminal cases. The Court further clarified that circumstantial evidence could be used for a non-hearsay purpose if it is relevant and probative, provided it meets the threshold of proof beyond reasonable doubt. The admissions made by the accused, when considered in the context of other evidence, could be used to establish the conspiracy.

The Court ultimately upheld the conviction, affirming that the evidence, while circumstantial, was sufficient to prove the existence and scope of the conspiracy beyond reasonable doubt. The Court did not see a substantial alteration in the common law principles due to the provisions of the Evidence Act. The decision underscored the necessity for the prosecution to meet the high burden of proof in conspiracy charges, while also recognising the flexibility in the use of circumstantial evidence under the Evidence Act.

Orders