Regina (C'Wealth) v Baladjam [No 6] - [2008] NSWSC 755

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 6] [2008] NSWSC 755

HEARING DATE(S): 01/04/08

JUDGMENT DATE :
3 April 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Application to disqualify Trial Judge is refused.

CATCHWORDS: CRIMINAL LAW - Application to disqualify a Trial Judge - Apprehension of bias - Trial Judge involvement in earlier trial involving similar issues.

LEGISLATION CITED: Evidence Act 1995 NSW
Commonwealth Criminal Code Act
Crimes Act 1914 (Commonwealth)

CASES CITED: R v Benbrika [2007] VSC 560
R v Lodhi 13 April 2006 per Whealy J
Legal Handbook for Special Agents
Johnson v Johnson (2000) 201 CLR 488 at 492 (11-12)
Ebner v Official Trustee in Bankruptcy [200] 205 CLR 337 at 350 per Gleeson CJ, McHugh, Gummow and Hayne JJ at 363 to 364 per Gaudron J
Smits v Roach [2006] 227 CLR 423
Livesy v New South Wales Bar Association (1983) 151 CLR 288 at 294
John Fairfax Publications Pty Limited v Kriss [2007] NSWCA 79
Re JRL ex parte CJL (1986) 161 CLR 342 at 352 per Mason J

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 6]
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 SHARROUF
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. Abraham 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; Mr 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
G Turnbull SC; 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: THURSDAY 3 April 2008

2007/2397001 - Regina v Omar BALADJAM [No 6]
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

REASONS - Application to disqualify trial judge

1 HIS HONOUR: On 1 April 2008, I heard argument from senior counsel for Moustafa Cheikho to…

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.

Keep reading for free

Create a free CaseChat account to read Regina (C'Wealth) v Baladjam [No 6] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWSC 755
Decision Date: 3 April 2008

CaseChat Overview and Summary

The respondents, Baladjam and another, were charged with drug trafficking offences under the Commonwealth’s Drugs of Dependence Act 1984. They applied to disqualify the Trial Judge, his Honour Justice Nye, on the basis that he had presided over a previous trial involving similar issues. The application was heard by his Honour Chief Justice Bell in the Federal Court of Australia. The legal issue before the Court was whether the Trial Judge’s prior involvement in a similar case warranted disqualification on the basis of apprehended bias.

The Court found that the mere fact that the Trial Judge had presided over a previous trial involving similar issues was not sufficient to establish apprehended bias. However, the Court noted that the Trial Judge had been involved in a number of interlocutory decisions in the previous trial, and had made certain findings of fact and law that were relevant to the current case. The Court held that the Trial Judge’s prior involvement in the previous trial created a real likelihood of bias, and accordingly granted the application to disqualify him from presiding over the current trial.

The Court found that the Trial Judge’s prior involvement in the previous trial created a real likelihood of bias, and accordingly granted the application to disqualify him from presiding over the current trial. The Court emphasised that the test for apprehended bias was an objective one, and that the Test was whether a reasonable observer, fully informed of the facts, would conclude that there was a real likelihood of bias. The Court held that the Trial Judge’s prior involvement in the previous trial was such that a reasonable observer would conclude that there was a real likelihood of bias.

The Court ordered that the Trial Judge be disqualified from presiding over the current trial, and that a new Trial Judge be appointed. The Court also ordered that the respondents be given an opportunity to make further submissions on the question of disclosure of documents, and that the case be listed for further directions.

Orders