Cheikho v Regina [2008] NSWCCA 191

Cheikho v Regina [2008] NSWCCA 191

The facts certified in the s 18(2) certificate are removed from facts in issue and elements of the offence; statutory conclusive evidence provision does not violate separation of powers or essential characteristics of trial by jury; the certificate does not preclude arguments about authenticity or chain of evidence of intercepted material; leave to appeal should be refused as applicants' constitutional argument is too remote from the issues at trial.

Parties
Applicant: Khaled Cheikho; Applicant: Bradley Umar Sariff Baladjam; Applicant: Mohamed Ali Elomar; Applicant: Abdul Rakib Hasan; Applicant: Mohammed Omar Jamal; Applicant: Mirsad Mulahalilovic; Applicant: Mazen Touma; Respondent: Regina; Intervening: Attorney-General of the Commonwealth
Jurisdiction
Australia
Judgment Date
13 August 2008
Procedural Posture
Criminal Appeal / Application for Leave to Appeal (and Extension of Time) From Interlocutory Decision on Admissibility of Evidence and Constitutional Issues
Outcome
Leave to appeal refused in each case. Time to lodge application extended.
Legal Topics
Admissibility of Evidence, Conclusive Evidence Certificates, Separation of Powers, Trial by Jury, Telecommunications Interception, Proof of Overt Acts, Statutory Interpretation
Criminal Law Constitutional Law Evidence Admissibility of Evidence Conclusive Evidence Certificates Separation of Powers Trial by Jury Telecommunications Interception +2 more

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Parties

Khaled Cheikho

Applicant

Bradley Umar Sariff Baladjam

Applicant

Mohamed Ali Elomar

Applicant

Abdul Rakib Hasan

Applicant

Mohammed Omar Jamal

Applicant

Mirsad Mulahalilovic

Applicant

Mazen Touma

Applicant

Regina

Respondent

Attorney-General of the Commonwealth

Intervening

Procedural Posture

Criminal Appeal / Application for Leave to Appeal (and Extension of Time) From Interlocutory Decision on Admissibility of Evidence and Constitutional Issues

Legal Issues

  1. 1 Whether s 18(2) of the Telecommunications (Interception and Access) Act 1979 (Cth) is constitutionally invalid as violating separation of judicial powers (Chapter III) or the right to trial by jury (s 80)
  2. 2 Whether ruling on admissibility/effect of evidence is 'judgment or order' within s 5F Criminal Appeal Act 1912 NSW
  3. 3 Whether conclusive evidence certificate prevents challenge to legality of interception and chain of evidence as required by the accusatorial criminal justice system

Ratio Decidendi

The facts certified in the s 18(2) certificate are removed from facts in issue and elements of the offence; statutory conclusive evidence provision does not violate separation of powers or essential characteristics of trial by jury; the certificate does not preclude arguments about authenticity or chain of evidence of intercepted material; leave to appeal should be refused as applicants' constitutional argument is too remote from the issues at trial.

Court Disposition

Leave to appeal refused in each case. Time to lodge application extended.

Orders

  • Time to lodge application for leave to appeal extended up to and including the date on which the application was filed in matters 2007/2397; 2007/2399; 2007/2400; 2007/2452; 2007/2454; 2007/2455.
  • Leave to appeal refused in each case.