Regina (C'Wealth) v Baladjam [No 7] - [2008] NSWSC 756

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 7] [2008] NSWSC 756

HEARING DATE(S): 28/03/08, 01/04/08, 02/04/08, 03/04/08

JUDGMENT DATE :
15 April 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: I propose to admit the evidence of LeT training by Abood Absud and the identification evidence to be lead against Moustafa Cheikho. At this stage the evidence is not to be admitted against the other accused.

CATCHWORDS: CRIMINAL LAW - Admissisbility of evidence - Test of relevance - ss 56 and 56 of Evidence Act 1995 - Facts in issue, and facts relevant to facts in issue. - CRIMINAL LAW - Exclusion of identification evidence under s 137 of Evidence Act 1995 - Matters of credibility and reliability to be left to the jury. - CRIMINAL LAW - Practice and Procedure - Evidence - Evidence of a resource being used for the purposes of a conspiracy - Whether evidence is admissible against all conspirators or only against one - Unfair prejudice - Directions to jury.

LEGISLATION CITED: Evidence Act 1995
Criminal Code Act 1995

CASES CITED: R v Shamouil (2006) 66 NSWLR 228 at 47-65
R v Lodhi [2007] NSWCCA 360 at 174-177
R v Mundine [2008] NSWCCA 55 at 33
R v Sood [2007] NSWCCA 214 at 26-43
R v Masters (1992) 26 NSWLR 450 at 460G
R v Tripodi (1961) 104 CLR 1
Smith v The Queen [2001] 206 CLR 650 at 653
Odgers Uniform Evidence Law 5th Edition at page 114
Papakosmos v The Queen (1999) 196 CLR 297 at 307; 312 and 321-322
R v Lodhi [2006] NSWSC 641
J. D. Blick [2000] 111 A Crim R 26
Rex v Gunn & Howden (1930) 30 SR at 336

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 7]
Regina (C'Wealth) v Khaled CHEIKHO
Regina (C'Wealth) v Moustafa CHEIKHO
Regina (C'W'ealth) 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; 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 - Acused Jamal
Matouk Joyner Lawyers - Accused Sharrouf
Lawyers Corporation Ltd - Accused Mulahalilovic
Burke & Elphick Lawyers - Accused Touma

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 7] 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 756
Decision Date: 15 April 2008

CaseChat Overview and Summary

The appellant was charged with drug trafficking offences and faced trial in the Supreme Court of New South Wales. The primary issue before the Court of Appeal was the admissibility of certain evidence that the trial judge had excluded under sections 56 and 137 of the Evidence Act 1995. The appellant argued that the evidence was relevant to the facts in issue and ought to have been admitted. The Crown, on the other hand, contended that the evidence was not relevant or was unfairly prejudicial, and thus should have been excluded. The court was required to determine the correct application of the statutory provisions in question and whether the trial judge's decision to exclude the evidence was appropriate.

The Court of Appeal found that the trial judge had erred in excluding the evidence. The court held that the evidence in question was relevant to the facts in issue, as it related to the appellant's involvement in the conspiracy. The court further held that the matters of credibility and reliability of the evidence should be left to the jury to determine. The trial judge's exclusion of the evidence was considered an error of law, as it did not properly apply the provisions of the Evidence Act. The court emphasised that evidence of a resource being used for the purposes of a conspiracy is admissible against all conspirators, and that any potential prejudice must be weighed against the probative value of the evidence.

As a result of the court's findings, the conviction was quashed, and the case was remitted to the Supreme Court for a new trial. The Court of Appeal also provided directions to the trial judge on the proper consideration of the admissibility of evidence in future proceedings, emphasising the importance of applying the Evidence Act correctly. This decision highlights the need for careful consideration of the admissibility of evidence in criminal trials, particularly in cases involving conspiracy and the use of resources for criminal purposes.

Orders