CITATION: Regina (C'Wealth) v Elomar & Ors [No 1] [2008] NSWSC 1442 HEARING DATE(S): 05/11/08
JUDGMENT DATE :
5 November 2008JURISDICTION: 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 1977CASES 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 110PARTIES: 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 JAMALFILE 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 JamalSOLICITORS: 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 LISTWHEALY 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 JAMALJUDGMENT - 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…
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- Case
- [2008] NSWSC 1442
- Decision Date
CaseChat Overview and Summary
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.
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