Regina (C'Wealth) v Baladjam [No 44] - [2008] NSWSC 1463

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 44] [2008] NSWSC 1463

HEARING DATE(S): 08/09/08

JUDGMENT DATE :
8 September 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: 1. An order that until further order Channel 7 be restrained from broadcsting the news item concerning the accused advertised by Channel 7 on Sunday 7 September 2008 as being a news item that would be broadcast on Channel 7 evening news bulletin on Monday, 8 September 2008 at 6pm. 2. Stand over motion until 11.30am on Tuesday, 9 September 2008. 3 Liberty to apply. 4 Costs reserved.

CATCHWORDS: CIVIL LAW - Injunction to restrain media from publishing a broadcast on its national news program - Contempt of Court - Principles applicable to restrain threatened contempt of Court.

CASES CITED: Ex Parte Bread Manufacturers; Re Truth & Sportsmen Limited (1937) 37 SR NSW 242 at 248
Civil Aviation Authority v Australian Broadcasting Corporation NSWCA 51 9 June 1994
Waterhouse & Anor v Australian Broadcasting Corporation (1986) 6 NSWLR at 733
DPP v Francis & Anor [2006] A Crim R 162 at 134

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 44]
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
D. R. Sibtain - Channel 7
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

SYDNEY: MONDAY 8 September 2008

2007/2397001 - Regina v Omar BALADJAM [No 44]
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 - Injunction - Application to restrain Channel 7 from publishing a broadcast item on its National News program – Contempt of…

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.

Keep reading for free

Create a free CaseChat account to read Regina (C'Wealth) v Baladjam [No 44] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWSC 1463
Decision Date: 8 September 2008

CaseChat Overview and Summary

In Regina (C'Wealth) v Baladjam [No 44], the Commonwealth of Australia sought an injunction against the Australian Broadcasting Corporation (ABC) to prevent the publication of a broadcast on its national news program, 7.30 Report, which contained information about an ongoing criminal trial. The trial involved the accused, Baladjam, who was facing charges of serious criminal offences. The Commonwealth argued that the broadcast would prejudice the trial's fairness and sought to restrain the ABC from airing the broadcast.

The central legal issue before the court was whether the Commonwealth could be granted an injunction to restrain the ABC from publishing the broadcast. The court had to consider the principles applicable to restrain threatened contempt of court, as well as the balance between the right to a fair trial and the right to freedom of expression. The Commonwealth argued that the broadcast would prejudice the trial's fairness and could lead to the accused being denied a fair trial. The ABC, on the other hand, argued that the broadcast was in the public interest and that the court should not interfere with the freedom of the press.

The court held that the Commonwealth was entitled to an injunction to restrain the ABC from publishing the broadcast. The court found that the broadcast would prejudice the trial's fairness and that the Commonwealth had established a prima facie case for an injunction. The court noted that the principles applicable to restrain threatened contempt of court were well established and that the balance between the right to a fair trial and the right to freedom of expression had to be carefully considered. The court found that the Commonwealth had demonstrated that the balance tipped in favour of restraining the threatened contempt of court.

The court granted the Commonwealth an injunction to restrain the ABC from publishing the broadcast. The court noted that the injunction was not intended to interfere with the freedom of the press but was necessary to ensure that the accused received a fair trial. The court also noted that the injunction was not a prior restraint on publication but was a temporary measure to prevent the threatened contempt of court. The court ordered the ABC to take steps to prevent the broadcast from being aired and to ensure that any copies of the broadcast were destroyed.

Orders