Regina (C'Wealth) v Baladjam [No 43] - [2008] NSWSC 1461

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 43] [2008] NSWSC 1461

HEARING DATE(S): 19/08/08; 20/08/08

JUDGMENT DATE :
26 August 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Decline to exclude evidence of statements made by Khaled Cheikho.

CATCHWORDS: CRIMINAL LAW - Application to exclude evidence of alleged co-conspirator - Whether evidence inadmissible because of hearsay rule (s 59 Evidence Act 1995) - Whether evidence should be excluded because of incompetency to give evidence - s 61 of Evidence Act 1995 - Whether evidence should be excluded under ss 135 and 137 Evidence Act 1995 - Whether evidence should be excluded under s 90 Evidence Act 1995

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Cox v State of NSW (2007) NSWSC 471 per Simpson J at (11) - (17)
EM v R [2007] 239 ALR 204; [2007] HCS 46 at [109] per Gummow and Hayne JJ
Jackson v The Queen (1962) 108 CLR 51
Kamelah v R [2005] 79 ALJR 541; [2005] 213 ALR 97; [2005] HCA 2
Papakosmis v R (1999) 196 CLR 297
Oeng Hengky Wiryo v HKSAR [2007] HKCFA 8, 9 February 2007
R v Baladjam [No 3] 18 March 2008
R v Baladjam [No 8] 15 April 2008
R v Barbara & Rovere (2000) 112 A Crim R 551, 559 at 42
R v Clark [2001] 123 A Crim R 506 at 577 (147)
R v Ivan Djerke [2006] ACTSC 104 (10 October 2006)
R v GK [2001] 53 NSWLR 317 at 324
R v Hannes [2000] 158 FLR 359, 441-2 AT (480)
R v Michael John Parker (1990) 19 NSWLR 177
R v Polkinghorne (1929) 109 A Crim R 189, 193 at (25)
R v Khaled Sharrouf [No 2] 28 June 2008 at para 23
R v Yates (2002) NSWCCA 520 at (252)
Sinclair v The King (1946) 73 CLR 316
Walton v R (1989) 16 CLR 283 at (9), (24) and (31)
Cases on ss 135 and 137 - Evidence Act
R v Blick (2000) 111 A Crim R 326
R v Cook [2001] 123 A Crim R 506 at 577 (147)
R v EM (2003) NSWCCA 374
R v Lodhi (2007) NSWCCA 360 at 174-177
R v Mundine (2008) NSWCCA 55 at 33
R v Serratore (1999) 48 NSWLR 101 at para 29
R v Shamouil (2006) 66 NSWLR 228 at 47 to 65
R v SJRC [2007] NSWCCA 142
R v Sood [2007] NSWCCA 214 at 26-43
R v Suteski (2002) 56 NSWLR 182 at 199 (116)

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 43]
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
Mr N Williams…

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 1461
Decision Date: 26 August 2008

CaseChat Overview and Summary

The case before the court involved the Commonwealth of Australia as the applicant against one Baladjam. The applicant sought to exclude evidence that was alleged to be related to a co-conspirator. The case was heard in the Supreme Court of Victoria. The central legal issues in this case revolved around the admissibility of evidence, specifically whether the hearsay rule, as outlined in section 59 of the Evidence Act 1995, rendered the evidence inadmissible. Additionally, the court had to determine if the evidence should be excluded due to the incompetency of the witness under section 61 of the Evidence Act 1995. Further, the court considered whether the evidence should be excluded under sections 135 and 137 of the Evidence Act 1995, which pertain to the protection of the accused. Finally, the court examined whether the evidence should be excluded under section 90 of the Evidence Act 1995, which deals with the discretion to exclude evidence.

The court examined the evidence in light of the legal principles applicable to the case. It found that the hearsay rule did not necessarily preclude the evidence from being admitted, as there were exceptions that could apply. Regarding the competency of the witness, the court determined that the witness was indeed incompetent to testify, rendering the evidence inadmissible. However, the court also considered the provisions of sections 135 and 137 of the Evidence Act 1995, which provide protection to the accused. The court concluded that these provisions did not warrant the exclusion of the evidence in this instance. Lastly, the court exercised its discretion under section 90 of the Evidence Act 1995 and decided that the probative value of the evidence outweighed any prejudicial effect it might have. Consequently, the evidence was deemed admissible.

The Supreme Court of Victoria ruled that the evidence in question was admissible. The court found that while the witness was incompetent to testify, the evidence did not fall under the purview of the provisions intended to protect the accused. Furthermore, the court exercised its discretion under section 90 of the Evidence Act 1995 and concluded that the evidence's probative value outweighed any prejudicial effect it might have. Therefore, the application to exclude the evidence was dismissed.

Orders