Regina (C'Wealth) v Baladjam & Ors [No 14] [2008] NSWSC 1438

Regina (C'Wealth) v Baladjam & Ors [No 14] [2008] NSWSC 1438

The application to exclude the identification evidence of Moustafa Cheikho under s 138 fails because the evidence was not obtained improperly or illegally, but rather as part of an intelligence gathering process by ASIO. No impropriety or contravention of law was established and, even if minor impropriety existed, the desirability of admitting the evidence outweighs any undesirability.

Jurisdiction
Australia
Judgment Date
02 May 2008
Procedural Posture
Criminal / Interlocutory Application for Exclusion of Evidence
Outcome
Application to exclude evidence dismissed.
Legal Topics
['exclusion of Evidence' 'evidence Act 1995 S 138' 'identification Evidence' 'intelligence Gathering Vs Investigation' 'impropriety']
['criminal Law'] ['exclusion of Evidence' 'evidence Act 1995 S 138' 'identification Evidence' 'intelligence Gathering Vs Investigation' 'impropriety']

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Procedural Posture

Criminal / Interlocutory Application for Exclusion of Evidence

Legal Issues

  1. 1 ['Whether the identification evidence of Moustafa Cheikho by Kwon should be excluded under s 138 of the Evidence Act 1995 (NSW) on the grounds of impropriety or illegality in the collection of that evidence.']

Ratio Decidendi

The application to exclude the identification evidence of Moustafa Cheikho under s 138 fails because the evidence was not obtained improperly or illegally, but rather as part of an intelligence gathering process by ASIO. No impropriety or contravention of law was established and, even if minor impropriety existed, the desirability of admitting the evidence outweighs any undesirability.

Court Disposition

Application to exclude evidence dismissed.

Orders

  • ['Evidence of identification of Moustafa Cheikho by Yong Ki Kwon is admissible.' 'Application under s 138 of the Evidence Act 1995 to exclude the evidence is rejected.']