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

New South Wales Supreme Court

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

HEARING DATE(S) : 07/08/08; 18/08/08; 02/09/08

JUDGMENT DATE : 30 September 2008

JURISDICTION : Criminal

JUDGMENT OF : Whealy J at 1

DECISION : Order that the Notice of Motion dated 4 July 2008 be dismissed.

CATCHWORDS : CRIMINAL LAW - Application to exclude admissions made by accused on the basis of oppressive police conduct - Proper construction of s 84 Evidence Act 2005. - CRIMINAL LAW - Application to exclude from trial items removed during execution of a search warrant - Suggested breaches of ss 3K(3)(a) and (b) of Crimes Act 1914 (Cth) - Failure to notify the occupier of the premises from which items have been removed of the place and time at which the subsequent examination will be carried out - Failure to allow the occupier or his representative to be present during the subsequent examination - Proper construction of section. - CRIMINAL LAW - Breaches of ss 3K(3B) and (3C) - Failure to make application for extension of time in the name of the executing officer - Failure by executing officer to give notice of the extension application to the occupier - Failure to give adequate notice to occupier's solicitor - Proper construction of ss 3K(3B) and (3C) of Crimes Act 1914 (Cth). - CRIMINAL LAW - Alleged failure to give a copy of search warrant to a person in the position of alternate occupier - The requirements of s 3H of the Crimes Act 1914 (Cth) - Proper construction of section. - CRIMINAL LAW - Alleged breach of 3P of Crimes Act 1914 (Cth) - Failure to allow occupier or alternate occupier to be present during the search - Proper construction of section in circumstances where occupier has been arrested, detained and taken away from the premises. - CRIMINAL LAW - Proper construction of s 23G of the Crimes Act 1914 (Cth) - Failure to allow an arrested person to communicate with friend, relative and legal practitioner - Whether alleged failure capable of amounting to oppressive conduct - Whether any breaches of the accused's rights under the Crimes Act 1914 (Cth) had any bearing on his making the statement sought to be excluded. - CRIMINAL LAW - Applicability of ss 135 and 137 and 90 of Evidence Act 1995 - Whether statements should be excluded as being unfairly prejudicial or unfair to the accused. - CRIMINAL LAW - S 138 Evidence Act 1995 - Ambit of discretionary considerations and matters relevant to decision as to whether evidence should be excluded where breach has been established.