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

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

No evidence was provided that jurors had seen the publicised material, and although similarities existed between the publicity and trial matters, material differences were found. The risks of prejudice did not reach the threshold for necessity. Directions had been given to the jury to consider only trial evidence, and there was confidence in their adherence to instructions. Therefore, the application to discharge the jury was refused.

Parties
Prosecution: Regina (C'Wealth); Accused: Mohamed Ali Elomar; Accused: Abdul Rakib Hasan; Accused: Khaled Cheikho; Accused: Moustafa Cheikho; Accused: Mohammed Omar Jamal
Jurisdiction
Australia
Judgment Date
29 September 2009
Procedural Posture
Criminal / Interlocutory Application for Jury Discharge
Outcome
Application refused
Legal Topics
Jury Discharge, Prejudicial Publicity, Fair Trial, Test of Necessity
Criminal Law Jury Discharge Prejudicial Publicity Fair Trial Test of Necessity

Case Brief

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Parties

Regina (C'Wealth)

Prosecution

Mohamed Ali Elomar

Accused

Abdul Rakib Hasan

Accused

Khaled Cheikho

Accused

Moustafa Cheikho

Accused

Mohammed Omar Jamal

Accused

Procedural Posture

Criminal / Interlocutory Application for Jury Discharge

Legal Issues

  1. 1 Whether publicity about overseas and local terrorist trials warrants discharge of the jury
  2. 2 Whether publicised matters not directly related to the accused create a real risk of miscarriage of justice
  3. 3 Whether similarity between matters publicised and the circumstances of the present trial create prejudice

Ratio Decidendi

No evidence was provided that jurors had seen the publicised material, and although similarities existed between the publicity and trial matters, material differences were found. The risks of prejudice did not reach the threshold for necessity. Directions had been given to the jury to consider only trial evidence, and there was confidence in their adherence to instructions. Therefore, the application to discharge the jury was refused.

Court Disposition

Application refused

Orders

  • Application for discharge of the jury is refused