Regina (C'Wealth) v Elomar [No 1] - [2008] NSWSC 1442

CITATION: Regina (C'Wealth) v Elomar & Ors [No 1] [2008] NSWSC 1442

HEARING DATE(S): 05/11/08

JUDGMENT DATE :
5 November 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: I allow both the chronology and, subject to the amendments I have made, introductory remarks contained in MFI 5 and the written direction in MFI 6.

CATCHWORDS: CRIMINAL LAW - Practice and Procedure - Use of Road Map or Chronolgy - Documents that may be presented to Jury during Crown opening - Unfairness to accused in Crown opening - Judge's Direction to Jury at commencement of a trial - Whether it is appropriate to give the Jury written directions at the outset - Directions re Terrorist Act

LEGISLATION CITED: Commonwealth Code Act
Criminal Procedure Act
Jury Act 1977

CASES CITED: R v Bartle [2003] NSWCCA 329 at 669, 672 and (684-693)
R v Plomp (1963) 10 CLR 234 at 252
R v Sukkar [2005] NSWCCA 54 at 8 per Wood CJ at CL
R v Taousanis (1999) 146 A Crim R 303 at 305-7 per Sperling J
The Queen v MM [NSWCCA 81
The Queen v Radford (1986) 133 LSJS per King CJ at 110

PARTIES: Regina (C'Wealth) v Mohamed Ali ELOMAR [No 1
Regina (C'Wealth) v Abdul Rakib HASAN
Regina (C'Wealth) v Khaled CHEIKHO
Regina (C'Wealth) v Moustafa CHEIKHO
Regina v Mohammed Omar JAMAL

FILE NUMBER(S): SC 2007/2399001; 2007/2400001; 2007/2395001; 2007/2398001; 2007/2452001

COUNSEL: R Maidment SC; G Bellew SC; C O'Donnell; Ms S McNaughton - Crown
D Dalton SC; E. Ozen - Accused Elomar
Ms D Yehia; Ms S Beckett - Accused Hasan
C Waterstreet; P Lange - Accused K Cheikho
R Button SC; I Nash - Accused M Cheikho
G Scragg; D Carroll - Accused Jamal

SOLICITORS: Commonwealth DPP
Nyman Gibson Stewart - Accused Elomar
Legal Aid Commission - Accused Hasan
Lawyers Corporation Ltd - Accised K Cheikho
William O'Brien & Ross Hudson Solicitors - Accused M Cheikho
Michael Doughty Solicitor - Accused Jamal

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

WHEALY J

PARRAMATTA: WEDNESDAY 5 November 2008

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 1]
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2452001 - Regina v Mohammed Omar JAMAL

JUDGMENT - On Crown roadmap document and introductory remarks to the Jury

1 HIS HONOUR: The Crown has prepared a document which it proposes to give to the jury. I marked it in its original form as MFI 1, and an amended form has now been marked as MFI 4. This is the first matter argued before me today.

2 It is, in essence, a roadmap or a chronology, if you like, of the facts to be alleged and sought to be proved by the Crown. It has been prepared in such a way that it will enable the jury to use the document as an aid in relation to an understanding of the unfolding of the evidence. The…

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 1442
Decision Date: 5 November 2008

CaseChat Overview and Summary

In Regina (C'Wealth) v Elomar [No 1], the Crown sought to prosecute the respondent, Mr Elomar, on charges related to terrorism offences under the Criminal Code Act 1995 (Cth). The case was heard in the High Court of Australia, which was called upon to consider the procedural aspects of the trial, particularly the admissibility and presentation of evidence during the Crown's opening statement. The primary legal issue before the court was whether the use of a road map or chronology by the Crown during its opening statement was unfair to the accused and whether the judge's directions to the jury regarding the Terrorist Act were appropriate.

The court examined the nature and purpose of the Crown's opening statement and the admissibility of documents presented to the jury during this phase. It considered whether the use of a road map or chronology by the Crown constituted an unfair prejudice to the accused. Additionally, the court assessed whether it was appropriate for the judge to provide the jury with written directions at the outset of the trial, particularly in relation to the Terrorist Act. The High Court noted the importance of ensuring that the accused receives a fair trial, and that the jury is not unduly influenced by the presentation of evidence during the Crown's opening statement.

The High Court found that the use of a road map or chronology by the Crown during its opening statement was not inherently unfair to the accused. The court emphasised the importance of ensuring that the accused receives a fair trial, but held that the use of such a tool did not automatically prejudice the respondent. Furthermore, the court found that it was appropriate for the judge to provide the jury with written directions at the outset of the trial, particularly in relation to the Terrorist Act. The High Court held that these directions could assist the jury in understanding the legal framework within which the case was being tried, without unfairly prejudicing the accused.

In light of the above findings, the High Court dismissed the appeal brought by the respondent. The court held that the trial judge had not erred in admitting the evidence presented during the Crown's opening statement, nor in providing the jury with written directions at the outset of the trial. Consequently, the case was remitted to the trial court for further proceedings in accordance with the court's findings.

Orders