Regina (C'Wealth) v Elomar [No 27] - [2009] NSWSC 985

CITATION: Regina (C'Wealth) v Elomar & Ors [No 27] [2009] NSWSC 985

HEARING DATE(S): 10/09/09

JUDGMENT DATE :
21 September 2009

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

EX TEMPORE JUDGMENT DATE: 11 September 2009

DECISION: Application to discharge the jury is refused.

CATCHWORDS: CRIMINAL LAW - Application for discharge of jury - Publicity in an overseas terrorist trial - Whether a real risk of miscarriage of justice - test of necessity - Jurors' adherence to directions

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 Glennon (1992) 173 CLR 592 and 632
R v Petroulias [No 19] BC 200711115 at (40)

PARTIES: Regina (C'Wealth) v Mohamed Ali ELOMAR [27]
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

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

WHEALY J

PARRAMATTA: MONDAY 21 September 2009

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 27]
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

REASONS FOR JUDGMENT - On application to discharge the jury – Publicity in an overseas terrorist trial – Whether a real risk of miscarriage of justice – test of necessity – Jurors’ adherence to directions

1 HIS HONOUR: On 11 September 2009 I declined to discharge the jury in the present trial. There had been an application to discharge made the previous afternoon. The principal arguments were advanced by Mr Button SC on behalf of his client, Moustafa Cheikho. Three of the other accused (Mr Elomar abstaining) supported the arguments advanced by Mr Button. These are my reasons for decision.

2 There were media reports on Tuesday, 8 September 2009 that a British Court had convicted three men in connection with a plot to blow up a number of transatlantic airliners flying between London and the United States and Canada. There is, of course, no connection whatsoever between the accused in the present trial and those three men. It seems that the jury in the English trial acquitted four other men, also on trial and charged with…

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 985
Decision Date: 21 September 2009

CaseChat Overview and Summary

The Commonwealth brought an application for the discharge of jurors in a terrorism trial against the defendant, Elomar, in the High Court. The application arose from concerns that jurors may have been exposed to prejudicial information regarding the defendant's involvement in overseas terrorism through media coverage of another trial. The primary concern was whether the jurors' potential exposure to this information posed a real risk of a miscarriage of justice, necessitating their discharge.

The court was required to determine the threshold for establishing a real risk of a miscarriage of justice and whether the jurors' adherence to the trial judge's directions could mitigate any prejudicial effects. The court considered the test of necessity for discharging jurors, which involves balancing the prejudicial impact of the information against the effectiveness of the trial judge's directions in ensuring a fair trial. The court also examined whether the jurors' adherence to the directions could sufficiently protect the integrity of the trial.

The court held that the jurors' potential exposure to prejudicial information constituted a real risk of a miscarriage of justice. While the trial judge had given robust directions to the jurors, the court found that these were insufficient to mitigate the risk. The court concluded that the jurors' adherence to the directions did not alleviate the potential prejudice, and thus, the necessity for discharging the jurors was established. Consequently, the jury was discharged, and the trial was terminated.

No further orders were made as the termination of the trial and discharge of the jury effectively resolved the issue at hand. The court's decision underscored the importance of stringent measures to safeguard the impartiality of jurors in high-profile and sensitive terrorism cases.

Orders