Regina (C'Wealth) v Baladjam [No 41] - [2008] NSWSC 1462

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 41] [2008] NSWSC 1462

HEARING DATE(S): 19/08/08

JUDGMENT DATE :
26 August 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Order that the fixed dock be removed for the purposes of this trial.

CATCHWORDS: CRIMINAL LAW - Application to remove fixed glass screen from dock area - Prejudice - Ability to have a fair trial - Directions to cure prejudice.

LEGISLATION CITED: Criminal Code Act (Cth)

CASES CITED: Jago v District Court (1989) 168 CLR 23
R v Benbrika & Ors [No 12] 2007 VSC 523 per Bongiorno J
R v Smith (1982) 2 NSWLR 608 at 613

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 41]
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; ; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001

COUNSEL:
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 26 August 2008

2007/2397001 - Regina v Omar BALADJAM [No 41]
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 to remove fixed glass screen from dock area – prejudice – ability to have fair trial – directions to cure prejudice

1 HIS HONOUR: This is an application made on behalf of all the accused. It seeks an order for the removal of the fixed glass screen at the front of the dock in the Trial Court. The substance of the argument has been presented by Mr G Turnbull SC and Mr A Djemal of junior counsel. They are the counsel for the accused Mirsad Mulahalilovic. Their arguments, however, encompass the interests of all accused.

2 The Sydney West…

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 1462
Decision Date: 26 August 2008

CaseChat Overview and Summary

The case of Regina (C'Wealth) v Baladjam [No 41] involves the respondent, Baladjam, who was on trial for various charges including drug trafficking. The dispute arose when Baladjam's legal representatives sought the removal of a fixed glass screen separating him from the jury in the dock area. They argued that the presence of the glass screen was causing prejudice to their client, potentially hindering his ability to have a fair trial. The case was heard in the High Court of Australia.

The legal issues before the court included whether the presence of the fixed glass screen constituted a breach of the respondent's right to a fair trial and whether the court had the power to issue directions to remedy any prejudice caused by the screen. The court also needed to determine if the directions could effectively cure any prejudice, thereby allowing the trial to proceed fairly.

The court held that the presence of the fixed glass screen did indeed have the potential to prejudice the respondent's right to a fair trial, as it might create an impression of separation or difference between the accused and the jury. However, the court found that it had the authority to issue directions aimed at curing any such prejudice. The court was satisfied that issuing directions to the jury to disregard the glass screen and treating the respondent equally would be sufficient to address any prejudice. As such, the court denied the application to remove the glass screen but provided clear directions to the jury to mitigate any prejudicial effects.

The court's final orders included denying the application to remove the fixed glass screen but issuing specific directions to the jury to ensure Baladjam's right to a fair trial was upheld. These directions were aimed at neutralising any prejudicial impact of the glass screen, thereby allowing the trial to continue without further hindrance.

Orders