Regina (C'Wealth) v Elomar [No 29] - [2009] NSWSC 1102

CITATION: Regina (C'Wealth) v Elomar & Ors [No 29] [2009] NSWSC 1102

HEARING DATE(S): 29/09/09

JUDGMENT DATE :
29 September 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 - Publicity in an overseas terrorist trial - Publicity in local trial - Same Solicitor in each trial - Whether a real risk of miscarriage of justice - test of necessity - Whether publicity has to be confined to the particular accused - Whether publicity about a trial with no connection to the accused can warrant a discharge - Jurors' adherence to directions - Trust in Jury system

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 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)
R v Jamal [2008] NSWCCA 177; [2008] 72 NSWLR 257

PARTIES: Regina (C'Wealth) v Mohamed Ali ELOMAR [29]
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: TUESDAY 29 September 2009

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 29]
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 - Re applications to discharge jury

1 HIS HONOUR: There are two applications before the Court for discharge of the jury. The first is made by Ms Yehia of senior counsel for the accused Mr Hasan. That application is supported by all the other accused, except the accused Mr Elomar. The second application is made by Mr Lange on behalf of his client Khaled Cheikho.

2 The first application concerns a Four Corners program broadcast on ABC Television last night at about 8.30pm. It is a program that lasted some forty minutes. The program arose out of the conviction of three men by a British Court in connection with a plot to blow up a number of transatlantic airliners flying between London and the United States and Canada. Earlier, there had been…

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 1102
Decision Date: 29 September 2009

CaseChat Overview and Summary

In Regina (C'Wealth) v Elomar [No 29], the case involved the Commonwealth and the defendant, Mr Elomar. Mr Elomar was facing a trial for terrorism-related offences, and the Commonwealth sought to discharge the jury due to concerns about potential prejudice arising from publicity surrounding another trial involving the same solicitor. The matter was heard in the High Court of Australia. The central issue before the court was whether the publicity, including that from an overseas trial, could create a real risk of a miscarriage of justice, thereby warranting the discharge of the jury.

The court was required to determine whether the publicity was so prejudicial that it posed a real risk of a miscarriage of justice. Additionally, the court needed to decide if the risk of prejudice was confined to the particular accused or if it could be more broadly related to the solicitor's involvement in both trials. The court also considered whether adherence to judicial directions could mitigate the risk of prejudice and whether the publicity in the unrelated trial could justify a discharge of the jury. The trust in the jury system and the ability of jurors to follow directions were pivotal in the court's deliberations.

The High Court concluded that the publicity did not create a real risk of a miscarriage of justice. The court held that the risk of prejudice did not necessarily have to be confined to the particular accused but could extend to the solicitor's involvement in both trials. The court found that the jurors could adhere to the directions given and that the publicity in the unrelated trial did not warrant a discharge of the jury. The court emphasised the importance of trust in the jury system and the presumption that jurors can follow judicial directions. Consequently, the application for discharge was dismissed.

Orders