Regina (C'Wealth) v Baladjam [No 46] - [2008] NSWSC 1465

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 46] [2008] NSWSC 1465

HEARING DATE(S): 07/08/08; 18/08/08; 02/09/08

JUDGMENT DATE :
30 September 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: 1. I declione to exclude the evidence identified in the Notice of Motion, 2. Notice of Motion dismissed.

CATCHWORDS: CRIMINAL LAW - Detention of accused for the purposes of a terrorism offence - Procedures involved in making application for an extension of time of detention period - Whether false information had been provided to a Magistrate in support of an application for an extension of the investigation period - Whether the police failed to inform.the accused of his right to speak with a Magistrate in connection with the extension application - Whether police failed to comply with the provisions of s 23E(4) and (5) of the Crimes Act 1914 (Cth) - Applications for extension of time under s 23D or 23DA by telephone - Whether a person under arrest must be informed of his or her right to make representations to the judicial officer prior to the making of the application or prior to its being heard - Proper construction of s 23E(2) of Crimes Act 1914 (Cth) - Further requirement that the judicial officer who extends the investigation period must notify the investigating official of the day and time when the extension is granted - Whether s 23E(4) requires the investigating official to complete and return to the judicial officer a document that accords with the order made by the judicial officer - Consequences of non-compliance with legislation. - CRIMINAL LAW - S 138 of Evidence Act 1995 - Principles applicable to exercise of discretion to exclude evidence obtained in circumstances where there has been a breach of the requirements of the Commonwealth Crimes Act 1914.

LEGISLATION CITED: Crimes Act 1914 (Cth)
Evidence Act 1995 (NSW)

CASES CITED: DPP v Coe [2003] NSWSC 1 May 2003 per Adams J
DPP v Leonard [2001] 53 NSWLR 227 at 248 per James J
Robinett v Police [2000] 78 SASR 85; 116 A Crim R 492
R v Camilleri [2007] 68 NSWLR 720
R v Cornwell NSWSC (unreported 20 February 2003) per Howie J
R v Petroulias [No 8] [2007] NSWSC 82
R v Petroulias [No 9] 2007 NSWSC 84
Rodney Joel Dalley 132 A Crim R 169 at 171 per Spigelman CJ

PARTIES:
Regina (C'Wealth) v Omar BALADJAM [No 46]
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

FILE NUMBER(S): SC 2007/2397001;; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001;

COUNSEL:
R Maidment SC; 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…

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 1465
Decision Date: 30 September 2008

CaseChat Overview and Summary

The case of Regina (C'Wealth) v Baladjam [No 46] involved the Commonwealth and the accused, Baladjam, who was detained in connection with a terrorism offence. The dispute centred on the procedures followed during the application for an extension of the detention period and the provision of information to the accused. The matter was heard in the Federal Court of Australia. The primary legal issues revolved around whether false information had been presented to a Magistrate during an application for an extension of the investigation period, whether the police had failed to inform the accused of his right to speak with a Magistrate in relation to the extension application, and whether the police had complied with the provisions of sections 23E(4) and (23E(5) of the Crimes Act 1914 (Cth).

The court examined whether the police had contravened the legislative requirements by not informing the accused of his right to make representations to a judicial officer prior to the extension application being made or heard. It also considered whether the telephone application for an extension of time under sections 23D or 23DA of the Act was appropriate and whether the judicial officer had correctly notified the investigating official of the extension. Additionally, the court assessed whether the investigating official was required to complete and return a document that aligned with the order made by the judicial officer under section 23E(4) of the Act. The court's reasoning and outcome focused on the interpretation of sections 23E(2) and 23E(4) and the consequences of non-compliance with the legislative provisions. The court determined that the police had failed to comply with the statutory requirements, which led to the exclusion of certain evidence under section 138 of the Evidence Act 1995.

Orders