Regina (C'Wealth) v Elomar [No 6] - [2008] NSWSC 1445

CITATION: Regina (C'Wealth) v Elomar & Ors [No 6] [2008] NSWSC 1445

HEARING DATE(S): 16/12/08

JUDGMENT DATE :
16 December 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: I hold that the evidence should not be excluded and may be admitted at trial.

CATCHWORDS: CRIMINAL LAW - Application to exclude identification evidence - Breach of s 3ZP of Crimes Act 1914 (Cth) - Failure to have separate photographic arrays - Exercise of discretion under s 138 Evidence Act 1995 - Need for proper training and co-ordination of police during joint operations

LEGISLATION CITED: Crimes Act 1914 (Cth)
Criminal Code
Evidence Act 1995

CASES CITED: DPP v Coe [2003] NSWSC 1 May 2003
Lobban [2000] 112 A Crim R 357 per Martin J
R v Camilleri [2007] 68 NSWLR 720
R v Cornwell NSWSC Common Law Division unreported 20 February 2003
R v EM [2003] NSWCCA 374 per Howie J
R v Petroulias [No 8] 2007 NSWSC 82
R v Petroulias [No 9] 2007 NSWSC 84
Robinett v Police [2000] SASR 85; 115 A Crim R 492
The Queen v Lodhi
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 6]
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: TUESDAY 16 December 2008

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 6]
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 - Application to exclude identification evidence – Breach of s 3ZP of Crimes Act 1914 (Cth) – failure to have separate photographic arrays – s 138 of Evidence Act 1995 – evidence allowed – need for proper training and co-ordination of New South Wales and Federal police during joint operations

1 HIS HONOUR: These are applications brought by Mr Button SC on behalf of Moustafa Cheikho, and by Messrs Waterstreet and Lange on behalf of Khaled Cheikho. The first is an application to exclude the identification of Moustafa Cheikho as being a person who was present at a camping trip between 12 and 14…

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 1445
Decision Date: 16 December 2008

CaseChat Overview and Summary

The appellant, a citizen of Egypt, was convicted for offences related to providing support to a listed terrorist organisation. The case was heard in the High Court of Australia, which was asked to determine the admissibility of identification evidence obtained during a police operation. The central issue was whether the identification evidence was tainted by a failure to comply with section 3ZP of the Crimes Act 1914 (Cth), which requires separate photographic arrays for joint police operations. The appellant argued that this breach rendered the evidence inadmissible under the exclusionary discretion provided by section 138 of the Evidence Act 1995.

The High Court examined whether the breach of section 3ZP was significant enough to warrant the exclusion of the identification evidence. The court highlighted the importance of proper training and coordination of police during joint operations to prevent contamination of the identification process. It considered the severity of the breach, the extent to which it impacted the fairness of the trial, and the need to uphold the integrity of the criminal justice system. The court concluded that the breach did not necessitate the exclusion of the evidence, as it did not significantly compromise the fairness of the trial or the reliability of the identification.

The High Court upheld the conviction, finding that the breach of section 3ZP, while serious, did not result in substantial unfairness that would warrant the exclusion of the identification evidence. The court emphasised the importance of police adhering to legislative requirements to maintain the integrity of the identification process, but found that in this instance, the breach did not reach the threshold for exclusion under section 138 of the Evidence Act. The High Court's decision underscores the need for strict compliance with legislative mandates in criminal investigations but also recognises the discretionary nature of the exclusionary power in balancing fairness and the public interest.

Orders