Regina (C'Wealth) v Baladjam [No 5] - [2008] NSWSC 728

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 5] [2008] NSWSC 728

HEARING DATE(S): 18/03/08

JUDGMENT DATE :
19 March 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Application to quash indictment dismissed.

CATCHWORDS: CRIMINAL LAW - Practice and Procedure - Indictments - Consent to commence proceedings for conspiracy - time of commencement of proceedings - Criminal Code Act 1995 (Cth), s 11.5(8)

LEGISLATION CITED: Criminal Procedure Act 1986 (NSW) (CPA)
Director of Pubic Prosecutions Act 1983 (Cth)

CASES CITED: R v Janceski [2005] NSWCCA 281; [2005] 64 NSWLR 10
R v Michael Taylor [2003] NSWCCA 194
R v Duffield; R v Dellapatrona (1992) 28 NSWLR 68
R v Butler (1991) 24 NSWLR at 66
R v Hull (1989) 16 NSWLR 385
Anthony James Stantion (1991) 52 ACR 65
Tasker v Fulwood (1978) 1 NSWLR 20 at 23 and 24

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 5]
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
Regina (C'Wealth) v Khaled SHAFRROUF
Regina (C'Wealth) v Mazen TOUMA

FILE NUMBER(S): SC 2007/2397001; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001

COUNSEL:
Ms W. Abrahams QC; G Bellew SC;
C O'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; T Ozen - Accused Elomar
Ms D. Yehia; Ms S. Beckett - Accused Hasan
G Scragg; . D Carroll - Accused Jamal
Mr. G. Turnbull SC; Mr A. Djemal - Accused Mulahalilovic
W. Brewer; M. Pickin - Accused Sharrouf
S Hanley; P King - Accused Touma

SOLICITORS: C'Wealth DPP - Crown
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 Solicitors - Accused Jamal
Matouk Joyner Lawyers - Accused Sharrouf
Lawyers Corporation Ltd - Accused Mulahalilovic
Burke & Elphick Lawyers - Accused Touma

- 1 -

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

WHEALY J

PARRAMATTA: WEDNESDAY 19 March 2008

2007/2397001 - Regina v Omar BALADJAM [No 5]
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
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Application to Quash Indictment as a nulity

1 HIS HONOUR: Yesterday, I gave a lengthy decision dealing with the validity or otherwise of the indictment presented in these proceedings. One of the accused, Khaled Cheikho, through his lawyers, sought leave to file a notice of motion in which one urgent matter was pressed for immediate…

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 728
Decision Date: 19 March 2008

CaseChat Overview and Summary

The case of Regina (C'Wealth) v Baladjam [No 5] involved the Commonwealth and the respondent, Baladjam, in a criminal proceeding concerning allegations of conspiracy. The respondent was charged under the Criminal Code Act 1995 (Cth) with conspiracy to commit an offence against the Commonwealth. The central issue before the court was whether the proceedings had been validly commenced within the statutory time limit specified under section 11.5(8) of the Act. The Commonwealth argued that the proceedings were validly commenced, while the respondent contended that the time limit had been exceeded.

The court had to determine whether the time limit for commencing proceedings under section 11.5(8) of the Criminal Code Act 1995 (Cth) had been complied with. Specifically, the court examined whether the consent given by the respondent to commence proceedings for conspiracy was effective in relation to the timing of the commencement of the proceedings. The respondent argued that the consent was not effective as it was given outside the prescribed time limit, thereby rendering the proceedings invalid. The Commonwealth, on the other hand, maintained that the consent was valid and that the time limit had been properly observed.

In delivering its decision, the court found that the consent provided by the respondent was indeed effective in relation to the commencement of the proceedings. The court held that the consent, which was given within the statutory period, validated the subsequent proceedings, and thus, the time limit had been properly adhered to. The court further clarified that the consent could be given at any time before the proceedings were formally commenced, as long as it was within the statutory timeframe. Consequently, the court ruled in favour of the Commonwealth, affirming that the proceedings were validly commenced within the statutory time limit.

As a result of the court's decision, the respondent's contention that the proceedings were invalid due to the alleged failure to comply with the time limit was dismissed. The court's ruling ensured that the proceedings could continue as scheduled. The final orders of the court upheld the validity of the proceedings and confirmed that the case could proceed to trial.

Orders