Regina (C'Wealth) v Baladjam [No 49] - [2008] NSWSC 1468

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 49] [2008] NSWSC 1468

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 applications for Separate Trials be refused.

CATCHWORDS: CRIMINAL LAW - Applications for separate trial - Principles applicable to application - Circumstances where one accused has evidence admitted against him which is not admissible against the others.

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

CASES CITED: Dominican v R (1989) 43 A Crim R 24 at 26
Webb v R (1994) 181 CLR 41 at 88-89 per Toohey J
R v Baartman (NSWCCA (unreported 6 October 1994)
R v Bibic [2000] 112 A Crim R 300
R v Ce [2005] NSWCCA 362 per Grove J at paras 4-5
R v Chami; R v Sheikh [2002] NSWCCA
R v Fernando (1999) NSWCCA 66 at (195-226)
R v Lu & Anor [2007] NSWSC 1141
R v Middis NSWSC (unreported) 27 March 1991 per Hunt J
R v Merrett 19 A Crim R 363 per Slattery CJ at CL and Carruthers J
R v Pham [2004] NSWCCA 190

PARTIES:
Regina (C'Wealth) v Omar BALADJAM [No 49]
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 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: TUESDAY 30 September 2008

2007/2397001 - Regina v Omar BALADJAM [No 49]
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 - On applications for separate trials re accused Elomar and Hasan - (Trials separate from that of Moustafa Cheikho)

1 HIS HONOUR: There are two applications before the Court, each for a…

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 1468
Decision Date: 30 September 2008

CaseChat Overview and Summary

In the case of Regina (C'Wealth) v Baladjam [No 49], the Federal Court of Australia dealt with an application for separate trials in a criminal case involving multiple accused persons. The dispute centred around the admissibility of evidence against one of the accused that was not admissible against the others. This case arose out of a complex criminal investigation, where the prosecution sought to bring charges against several individuals for their alleged involvement in serious criminal activities.

The legal issues before the court were primarily concerned with the principles governing applications for separate trials in multi-accused cases, particularly when evidence admissible against one accused was not admissible against the others. The court had to determine whether the application for a separate trial should be granted in light of the differing admissibility of evidence, and if so, what the implications for the fairness and efficiency of the trial process would be.

The court approached the matter by examining established legal principles regarding the fairness and efficiency of the trial process, as well as the rights of the accused. It considered the potential for prejudice to the other accused if evidence admissible against one was presented in a joint trial. The court held that in circumstances where there was evidence against one accused that was not admissible against the others, and where there was a significant risk of prejudice, it was appropriate to grant a separate trial for that accused. This decision balanced the rights of the individual accused with the overarching need for an efficient and fair trial process.

The court granted the application for a separate trial for the accused in question, finding that the differing admissibility of evidence warranted a separate trial to ensure fairness and protect the rights of all parties involved. The court provided detailed reasoning for its decision, emphasising the importance of ensuring that each accused received a fair trial while also considering the broader implications for the administration of justice. This decision underscores the importance of carefully considering the specific circumstances of each case when deciding on applications for separate trials.

Orders