Regina (C'Wealth) v Baladjam [No 4] - [2008] NSWSC 726

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 4] [2008] NSWSC 726

HEARING DATE(S): 04/03/08, 05/03/08,

JUDGMENT DATE :
18 March 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: All orders sought in the Notice of Motion refused and application dismissed.

CATCHWORDS: CRIMINAL LAW - Practice and Procedure - Indictments - Conspiracy - Patent and latent duplicity - Criminal Code Act 1995 (Cth), s 11.5 - CRIMINAL LAW - Practice and Procedure - Indictments - Conspiracy - Whether a conspiracy to commit a preparatory act is unknow to law - Criminal Code Act 1995 (Cth), s 101.6. - CRIMINAL LAW - Practice and Procedure - Indictments - Conspiracy - Whether a charge of conspiracy should be dismissed on the basis that it is in the interest of justice to do so - Appropriateness of conspiracy charge - Criminal Code Act 1995 (Cth), s 11.5(6)

LEGISLATION CITED: Commonwealth Criminal Code Act 1995
Terrorism Legislation
Crimes Act 1914 (Cth)
Fisheries Act 1935
Customs Act 1901 (Cth)
Acts Interpretation Act 1901 (Cth)
Statute Law (Miscellaneous) Provisions Act (No 2) 1984 (Cth)
Crimes Amendment Act 1996 (Cth)
Crimes Act 1914 (Cth)
Criminal Law Act 1977
Workers' Rehabilitation Compensation Act 1986 (SA)
Evidence Act 1995
Workers' Rehabilitation Compensation Act 1986 (SA)
Acts Interpretation Act 1915 (SA)
Acts Interpretation Act 1901 (Cth)
Criminal Law Act 1977
Statute Law (Miscellaneous) Provisions Act (no 2) 1984 (Cth)
Crimes Amendment Act 1995 (Cth)

CASES CITED: Hoar (1981) 148 CLR 32
Final Report of the Criminal Law Offices Committee of the Standing Committees of Attorneys General December 1992
Ahearn v Regina (1988) 164 CLR 87
Mylonas (1985) 20 A Crim R at 214
R v Lodhi [2006] NSWCCA 121 at 69-70
DPP v Marriman (1973) AC 584 at 593
R v Locchi (1991) 22 NSWLR 309 per Samels JA
R v Moussad (1999) NSWCCA 337; 152 FLR 373 per Smart AJ
R v Petrouliaus (No 34) NSWSC 1462 at paras 23 to 27
R v Lodhi [2005] NSWSC 1377; [2005] 199 FLR 236
R v Saengsai-Or [2004] NSWCCA 108; [2004] 61 NSWLR 135
Regina v JS [2007] NSWCCA 272 at paras 142-145
MCCOC Report
R v Ansari [2007] NSWCCA 204
Gerakiteys v The Queen (1966) 1 QB 589
Mok (1987) 27 A Crim R 438
Saffron v R (1989) 17 NSWLR 395
The Law of Criminal Conspiracy by Peter Gillies 2nd Edition 1990 at p 216
R v Ongley (1940) Volume 57 NSW (WN) at p 7
R v Kwok; R v Ong; R v Tan [2005] NSWCCA 245
Viera v Regina; Teehan v Regina [2006] NSWCCA 401
Johnson v Miller (1937) 59 CLR 467
S v The Queen (1989) 168 CLR 266
Stanton v Abernathy (1990) 19 NSWLR 656
Walsh v Tattersall (1996) 188 CLR 77
R v Giam (1999) 104 A Crim R 46
R v Western Australia [2006] WASCA 241 at 81-82 and at 92
R v DEl-Kotob [2002] 4 VR 456 per Vincent JA at 42
R v Chung [2007] NSWCCA 231

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 726
Decision Date: 18 March 2008

CaseChat Overview and Summary

In Regina (C'Wealth) v Baladjam [No 4], the Commonwealth sought to prosecute Baladjam on charges including conspiracy to commit a preparatory act. The dispute involved the interpretation and application of provisions in the Criminal Code Act 1995 (Cth), particularly sections 11.5 and 101.6, which address conspiracy charges and the requirements for valid indictments. The court needed to determine whether a conspiracy to commit a preparatory act was known to the law and if the conspiracy charge should be dismissed based on the interest of justice. This determination was crucial in assessing the validity of the indictment and the appropriateness of the conspiracy charge.

The court examined whether the conspiracy to commit a preparatory act, as defined by section 101.6 of the Criminal Code Act 1995 (Cth), was a recognisable offence. It further considered the criteria for dismissing a charge under section 11.5(6), focusing on whether such a dismissal was appropriate in the interest of justice. This involved scrutinising the nature of the alleged conspiracy and the legal principles that govern the charging of conspiracy offences.

The court concluded that a conspiracy to commit a preparatory act was indeed known to the law and thus a valid offence. It held that the indictment was properly framed and did not suffer from patent or latent duplicity. The court also found that dismissing the conspiracy charge was not warranted in the interest of justice, as the charge was appropriate given the nature of the alleged criminal activity. The court's decision upheld the validity of the conspiracy charge and the indictment, ensuring that the prosecution could proceed as intended.

The final orders of the court were to confirm the validity of the indictment, reject the motion to dismiss the conspiracy charge, and allow the prosecution to proceed with the charges against Baladjam. This decision reinforced the legal framework for prosecuting conspiracy offences and the criteria for dismissing such charges in the interest of justice.

Orders