Regina (C'Wealth) v Baladjam & Ors [No 48] [2008] NSWSC 1467

Regina (C'Wealth) v Baladjam & Ors [No 48] [2008] NSWSC 1467

The statement made by Khaled Cheikho was relevant, admissible, not obtained by oppressive conduct, and not affected by breaches of s 23G or s 3P. While there were breaches of procedures regarding the examination of hard drives (failure to notify, allow presence, or proper application for extension), these were not deliberate or grave; under s 138 Evidence Act, the desirability of admitting the evidence far outweighed the undesirability, given its high probative value, seriousness of the offence, and the nature of breaches. Thus, the application to exclude the evidence was dismissed.

Parties
Prosecution: Regina (Commonwealth); Accused: Omar Baladjam; Accused: Khaled Cheikho; Accused: Moustafa Cheikho; Accused: Mohamed Ali Elomar; Accused: Abdul Rakib Hasan; Accused: Mohammed Omar Jamal; Accused: Mirsad Mulahalilovic
Jurisdiction
Australia
Judgment Date
30 September 2008
Procedural Posture
Criminal / Ruling on Pre Trial Application (notice of Motion) to Exclude Evidence
Outcome
Application dismissed
Legal Topics
Exclusion of Evidence, Police Powers, Search Warrants, Oppressive Conduct, Evidence Act 1995 (nsw) S 84, S 138, Crimes Act 1914 (cth) Compliance
Criminal Law Evidence Exclusion of Evidence Police Powers Search Warrants Oppressive Conduct Evidence Act 1995 (nsw) S 84, S 138 Crimes Act 1914 (cth) Compliance

Case Brief

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Parties

Regina (Commonwealth)

Prosecution

Omar Baladjam

Accused

Khaled Cheikho

Accused

Moustafa Cheikho

Accused

Mohamed Ali Elomar

Accused

Abdul Rakib Hasan

Accused

Mohammed Omar Jamal

Accused

Mirsad Mulahalilovic

Accused

Procedural Posture

Criminal / Ruling on Pre Trial Application (notice of Motion) to Exclude Evidence

Legal Issues

  1. 1 Whether admissions/statements and seized items should be excluded due to oppressive conduct or breaches of statutory provisions
  2. 2 Proper construction of s 84, s 138 Evidence Act 1995 (NSW)
  3. 3 Proper construction and application of ss 3H, 3K, 3P, 23G of Crimes Act 1914 (Cth)

Ratio Decidendi

The statement made by Khaled Cheikho was relevant, admissible, not obtained by oppressive conduct, and not affected by breaches of s 23G or s 3P. While there were breaches of procedures regarding the examination of hard drives (failure to notify, allow presence, or proper application for extension), these were not deliberate or grave; under s 138 Evidence Act, the desirability of admitting the evidence far outweighed the undesirability, given its high probative value, seriousness of the offence, and the nature of breaches. Thus, the application to exclude the evidence was dismissed.

Court Disposition

Application dismissed

Orders

  • The notice of motion dated 4 July 2008 is dismissed.