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 2008JURISDICTION: 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 1914CASES 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 MULAHALILOVICFILE 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 MulahalilovicSOLICITORS: 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
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…
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- Case
- [2008] NSWSC 1466
- Decision Date
CaseChat Overview and Summary
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.
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Evidence
Evidence Before The Court
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