Citation: Regina (C'Wealth) v Baladjam & Ors [No 19] [2008] NSWSC 1441
Court: Supreme Court of New South Wales
Date: 28 May 2008
Judge(s): Whealy J
Background
Nine accused were on trial in the NSW Supreme Court charged with offences related to an alleged terrorist conspiracy. The prosecution sought to lead what it called the "Melbourne evidence": material concerning a group of Melbourne men, including a cleric who allegedly held and promoted extremist views, who were themselves the subject of separate terrorism proceedings in Victoria.
The Crown alleged that several of the Sydney accused had communicated with, and associated with, members of the Melbourne group. Those communications were said to have been conducted covertly, including through travel under false names and the use of public telephones. The Crown contended this material formed part of the broader conspiracy charged against the Sydney accused.
The defence, led primarily by senior counsel for one accused with support from all others, applied to exclude the Melbourne evidence from the trial. The application raised questions about the proper basis on which evidence of co-conspirators' acts and statements could be admitted, and whether its probative value was outweighed by the danger of unfair prejudice.
Legal Issues
- Whether the common law principles governing the admissibility of co-conspirator evidence in conspiracy trials survive the enactment of the Evidence Act 1995 (NSW), particularly in light of ss 57(2) and 87(2).
- Whether the Melbourne evidence was relevant to the charges against the Sydney accused.
- Whether the probative value of the Melbourne evidence was outweighed by the danger of unfair prejudice, under s 137 of the Evidence Act 1995, such that it should be excluded.
- Whether identifying a Melbourne figure by name (rather than a pseudonym) during trial created unacceptable prejudice, given concurrent Melbourne proceedings.
Decision
Whealy J declined to exclude the Melbourne evidence and ruled that it was admissible against the accused generally. The court found that the common law principles governing co-conspirator evidence, as articulated in cases such as Ahern v R (1988) 165 CLR 87 and Tripodi v R (1961) 104 CLR 1, had not been displaced by the Evidence Act 1995. Sections 57(2) and 87(2) of that Act were held to preserve, rather than overturn, the established common law framework for admitting the acts and statements of alleged co-conspirators.
On relevance, the court accepted the Crown's position that the Melbourne evidence bore directly on the nature and scope of the alleged conspiracy. Evidence of covert contact, shared extremist ideology, and coordinated activity between the Sydney accused and Melbourne group members was capable of shedding light on the existence, character, and extent of the conspiracy charged. The court rejected the defence suggestion that association alone was being used to attribute the Melbourne group's views to the Sydney accused, noting that appropriate jury directions could and should address that risk.
On the s 137 question, the court found that the probative value of the Melbourne evidence was not outweighed by the danger of unfair prejudice. The court acknowledged a degree of prejudicial potential but expressed confidence in the jury's capacity to follow directions limiting use of the evidence to its proper purpose. Regarding the Melbourne cleric's identity, the court was open to the prosecution using a pseudonym and noted that a more obscure pseudonym might be warranted depending on the timing of the trial, given the concurrent Melbourne proceedings.
Orders Made
- The application to exclude the "Melbourne evidence" was refused.
Key Takeaways
- The Supreme Court confirmed that the common law principles governing admissibility of co-conspirator evidence in conspiracy trials remain operative in NSW, and are not displaced by the Evidence Act 1995, with ss 57(2) and 87(2) of that Act preserving the common law framework.
- Evidence of acts and statements by alleged co-conspirators is admissible against all accused where it goes to the existence and scope of the conspiracy, not merely to the guilt of the individual who performed or made them.
- Under s 137 of the Evidence Act 1995, the court will not exclude evidence simply because it carries some prejudicial potential; the probative value must be outweighed by the danger of unfair prejudice, and appropriate jury directions are a relevant factor in that assessment.
- Where concurrent proceedings in another jurisdiction create a risk that a participant's name will carry prejudicial connotations, the court may direct use of a pseudonym, with the level of obscurity calibrated to the circumstances of the trial.
- Sufficient evidence of covert association, shared ideology, and coordinated conduct between geographically separated alleged co-conspirators can establish the necessary foundation for admissibility of that inter-group material.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 57(2), 87(2), 137
- Criminal Code Act 1995 (Cth)
- Criminal Code (ACT)
- Telecommunications (Interception) Act 1979 (Cth)
- Quarantine Act
- Road Transport (Alcohol & Drugs) Act
- Trade Practices Act
Cases
- Ahern v R (1988) 165 CLR 87
- Tripodi v R (1961) 104 CLR 1
- Masters v R (1992) 26 NSWLR 450
- R v Chai (1992) 27 NSWLR 153
- R v Hayter [2005] 1 WLR 605; [2005] UKHL 6
- Caratti v R [2000] 157 FLR 241
- R v Louden (1995) 37 NSWLR 683
- Smith v The Queen [2001] 206 CLR 650
- Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd & Ors [2007] 160 FCR 321
- Jackson v TCN Channel 9 Pty Limited [2002] NSWSC 1229
- MacIlwaine v Ramsay Food Packaging Pty Limited [2006] FCA 828
- R v Baladjam & Ors [No 11] (unreported, 16 April 2008)
- R v MacRaild (unreported, NSWCCA)
- R v Masters & Wunderlich (1992) 26 NSWLR