Regina (C'Wealth) v Baladjam [No 48] - [2008] NSWSC 1467

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 48] [2008] NSWSC 1467

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: Order that the Notice of Motion dated 4 July 2008 be dismissed.

CATCHWORDS: CRIMINAL LAW - Application to exclude admissions made by accused on the basis of oppressive police conduct - Proper construction of s 84 Evidence Act 2005. - CRIMINAL LAW - Application to exclude from trial items removed during execution of a search warrant - Suggested breaches of ss 3K(3)(a) and (b) of Crimes Act 1914 (Cth) - Failure to notify the occupier of the premises from which items have been removed of the place and time at which the subsequent examination will be carried out - Failure to allow the occupier or his representative to be present during the subsequent examination - Proper construction of section. - CRIMINAL LAW - Breaches of ss 3K(3B) and (3C) - Failure to make application for extension of time in the name of the executing officer - Failure by executing officer to give notice of the extension application to the occupier - Failure to give adequate notice to occupier's solicitor - Proper construction of ss 3K(3B) and (3C) of Crimes Act 1914 (Cth). - CRIMINAL LAW - Alleged failure to give a copy of search warrant to a person in the position of alternate occupier - The requirements of s 3H of the Crimes Act 1914 (Cth) - Proper construction of section. - CRIMINAL LAW - Alleged breach of 3P of Crimes Act 1914 (Cth) - Failure to allow occupier or alternate occupier to be present during the search - Proper construction of section in circumstances where occupier has been arrested, detained and taken away from the premises. - CRIMINAL LAW - Proper construction of s 23G of the Crimes Act 1914 (Cth) - Failure to allow an arrested person to communicate with friend, relative and legal practitioner - Whether alleged failure capable of amounting to oppressive conduct - Whether any breaches of the accused's rights under the Crimes Act 1914 (Cth) had any bearing on his making the statement sought to be excluded. - CRIMINAL LAW - Applicability of ss 135 and 137 and 90 of Evidence Act 1995 - Whether statements should be excluded as being unfairly prejudicial or unfair to the accused. - CRIMINAL LAW - S 138 Evidence Act 1995 - Ambit of discretionary considerations and matters relevant to decision as to whether evidence should be excluded where breach has been established.

LEGISLATION CITED: Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth) ss 3 H, 3K, 3P, 23D, 23F and 23 G
Cyberspace Act 2001
Evidence Act 1995 ss 84, 90, 135, 137 and 138

CASES CITED: Commissioner of Australian Federal Police v Oke [2007] 159 FCR 441, 449 at (3)
DPP v Coe [2003] NSWSC 1 May 2003
Egglishaw v Australian Crime Commission [2006] FCA 819
EM v R [2007] 239 ALR…

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 1467
Decision Date: 30 September 2008

CaseChat Overview and Summary

In the case of Regina (C'Wealth) v Baladjam [No 48], the appellant challenged the admissibility of evidence obtained during a police search of premises. The appellant argued that the evidence should be excluded due to alleged breaches of various provisions under the Crimes Act 1914 (Cth) and the Evidence Act 1995. The court was required to determine whether the police conduct during the search and the subsequent handling of the evidence amounted to oppressive conduct, and if so, whether this warranted the exclusion of the evidence under the Evidence Act.

The legal issues before the court encompassed the interpretation of several sections of the Crimes Act 1914 (Cth) and the Evidence Act 1995. These included ss 3K(3)(a) and (b) regarding notification and presence during the examination of seized items, ss 3K(3B) and (3C) concerning the application for an extension of time for a warrant, and s 3H relating to the provision of a copy of the search warrant to an alternate occupier. Additionally, the court examined s 23G regarding communication rights for arrested individuals, and ss 135, 137, and 90 of the Evidence Act 1995 concerning the admissibility of evidence based on unfairness and prejudice. The court also considered the discretionary considerations under s 138 of the Evidence Act 1995.

The court found that several breaches of the Crimes Act 1914 (Cth) had occurred, including failures to notify the occupier of the examination of seized items and to allow the occupier's presence during the search. However, the court held that these breaches did not amount to oppressive conduct as they were not deliberate or systemic, and did not prejudice the appellant's right to a fair trial. The court also determined that the breaches did not unfairly prejudice the appellant or affect the fairness of the trial, and thus, the evidence was not excluded under the Evidence Act 1995.

The court ordered that the evidence obtained during the search remain admissible in the trial, finding no basis to exclude it under the circumstances presented.

Orders