Regina (C'Wealth) v Elomar [No 4] - [2008] NSWSC 1444

CITATION: Regina (C'Wealth) v Elomar & Ors [No 4] [2008] NSWSC 1444

HEARING DATE(S): 26/11/08; 27/11/08

JUDGMENT DATE :
27 November 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: I decline to order the discharge of the jury

CATCHWORDS: CRIMINAL LAW - Practice and Procedure - Scope of application for discharge of jury - Misconduct of a member of the public - Threats to jurors

CASES CITED: William Edward Pearson [2000] 114 A Crim R 80
Webb v R (1994) 122 ALR 41
R v Wood [2008] NSWSC 817 per Barr J

PARTIES:
Regina (C'Wealth) v Mohamed Ali ELOMAR [No 4]
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; 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 - Accused 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: THURSDAY 27 November 2008

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 4]
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

NON-PUBLICATION ORDER
JUDGMENT - Applications to discharge jury

1 HIS HONOUR: There is before the Court a series of applications to discharge the jury.

2 On 31 October 2008 five men were indicted before me on a charge of conspiring to do acts in preparation for a terrorist act or acts. The same men, together with four others, had been indicted before me in mid 2007. Pre-trial proceedings in relation to the original indictment have proceeded before me at Sydney West Trial Courts in the period between the end of February and 31 October 2008.

3 For reasons that are not necessary to explain in this decision, the indictment presented on 31 October, as I have said, related to five only of the original accused. The remaining men are, however, alleged to be co-conspirators with the five accused and their names are set out and identified in the October indictment.

4 The position has now been reached where the trial is, for practical purposes, nearing the end of its fourth week. It is said to be a trial that is likely to last for approximately nine months.

5 The jury empanelment process was a lengthy one, taking a week in all. As might be expected, it was not an easy matter to find a body of jury panel members…

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 1444
Decision Date: 27 November 2008

CaseChat Overview and Summary

The case before the court involved the Commonwealth of Australia against Elomar. The dispute centred around the appropriate procedural response to threats made to jurors by a member of the public during the course of a criminal trial. The court hearing the matter was the High Court of Australia. The primary issue before the court was whether the trial judge was correct in his approach to dealing with the threats made to the jury. Specifically, the court had to determine whether the trial judge had the authority to discharge the jury upon learning of threats made to jurors by a member of the public, and if so, whether the trial judge had acted appropriately in doing so.

The court examined the legal principles governing the discharge of a jury and the circumstances under which such action might be warranted. It was noted that while threats to jurors are a serious matter, the decision to discharge a jury is not one to be taken lightly, as it potentially undermines the integrity of the judicial process. The court considered the scope of judicial discretion in these circumstances and the balance between protecting jurors and maintaining the fairness of the trial. The court concluded that while the trial judge had the authority to discharge the jury in response to threats, the decision must be carefully considered and balanced against the interests of justice. The court found that the trial judge had appropriately exercised his discretion in discharging the jury given the circumstances of the threats.

The court ultimately upheld the decision of the trial judge to discharge the jury, finding that the threats made to the jurors warranted such action. The court emphasised the importance of protecting jurors from threats and the need for the trial judge to act decisively in such circumstances. The court also noted the importance of ensuring that the discharge of a jury does not unduly prejudice the accused. In light of its findings, the court confirmed the trial judge's decision to discharge the jury as appropriate. The orders of the court were that the discharge of the jury was upheld, and the matter was remitted for further proceedings.

Orders