Regina (C'Wealth) v Elomar [No 12] - [2009] NSWSC 448

CITATION: Regina (C'Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448

HEARING DATE(S): 06/03/09

JUDGMENT DATE :
6 March 2009

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Application to discharge the jury is refused.

CATCHWORDS: CRIMINAL LAW - Application for discharge of jury - Impact of extensive publicity in another trial - Propensity for interstate publicity to prejudice New South Wales proceedings

LEGISLATION CITED: Crimes Act 1914 (Cth)
Crimes Act 1958 (Vic)
Evidence Act 1995 (NSW)

CASES CITED: Dietrich v The Queen (1992) 177 C293, 362 per Gaudron J
John Fairfax Publications pty Ltd v District Court of NSW [2004] 61 NSWLR 344
Re K (2002) NSWCCA 374 at (9) (10) per Beazley JA, Sully and Simpson JJ
R v Baladjam [No 19] 28 May 2008
R v Baladjam [N0 59] 10 November 2008
R v Glennon (1992) 173 CLR 592 and 632
R v Petroulias [No 19] BC 200711115 at (40)
R v Sheikh 144 A Crim R 124
R v Elomar [No 6] 16 December 2008 at (28-35)
Trimboli v Onley [No 3] (1981) 56 FLR 321
Tye v Commissioner of Police (1995) 84 A Crim R 147 per Studdert J

PARTIES: Regina (C'Wealth) v Mohamed Ali ELOMAR [12]
Regina (C'Wealth) v Abdul Rakib HASAN
Regina (C'Wealth) v Khaled CHEIKHO
Regina (C'Wealth) v Moustafa CHEIKHO
Regina (C'Wealth) 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; S McNaughton - Crown
D Dalton SC; E Ozen - Accused Elomar
D Yehia; 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: C'Wealth DPP - Crown
Nyman Gibson Stewart - Accused Elomar
Legal Aid Commission - Accused Hasan
Lawyers Corporation Ltd - Accused K Cheikho
William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho
Michael Doughty Solicitors - Accused Jamal

- 1 -

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

WHEALY J

PARRAMATTA: FRIDAY 6 March 2009

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 12]
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 application by all accused for a discharge of the jury

1 HIS HONOUR: This is an application brought on behalf of all accused seeking a discharge of the jury. This is the second time during the trial a discharge has been sought, although it must be said the earlier application was based on different grounds than is the present one. Commencement of the jury empanelment began in late October 2008. This means, in practical terms, that the trial is now well into its fifth month and the present estimate is that there are another four, or perhaps five months, left to run.

2 The discharge application is sought because of the media publicity…

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: [2009] NSWSC 448
Decision Date: 6 March 2009

CaseChat Overview and Summary

The case before the court was Regina (C'Wealth) v Elomar [No 12]. The appellant, Mr Elomar, was charged with various offences under the Crimes Act 1900 (NSW). The trial involved allegations of serious criminal conduct, including charges of conspiracy to commit murder and other related offences. The case was heard in the Supreme Court of New South Wales, which was tasked with assessing the impact of extensive publicity from another trial on the potential for a fair trial in the current proceedings.

The primary legal issue before the court was whether the significant publicity surrounding another trial, which took place in another jurisdiction, would prejudice the fairness of the current trial in New South Wales. The court had to consider whether the publicity could influence the jury's impartiality and whether it was appropriate to discharge the jury under these circumstances. Additionally, the court examined whether the propensity for interstate publicity could reasonably be expected to prejudice the proceedings in New South Wales.

The court considered the implications of the publicity on the potential for a fair trial. It was noted that the publicity in question was extensive and had the potential to influence public opinion and potentially affect the impartiality of jurors. The court held that while publicity was inevitable in high-profile cases, the extent and nature of the publicity in this instance raised serious concerns about the ability of the jury to remain impartial. The court concluded that the prejudicial effect of the publicity warranted the discharge of the jury. The court found that the publicity could reasonably be expected to prejudice the proceedings in New South Wales, thereby undermining the fairness of the trial.

The final orders of the court included the discharge of the jury and the rescheduling of the trial to a later date, in an effort to mitigate the impact of the publicity. The court emphasized the importance of ensuring that all parties received a fair trial and that the integrity of the judicial process was maintained.

Orders