Cheikho v Regina [2008] NSWCCA 191

Reported Decision: 234 FLR 12475 NSWLR 323261 ALR 57199 A Crim R 167

New South Wales Court of Criminal Appeal

CITATION: Cheikho v Regina [2008] NSWCCA 191

HEARING DATE(S): 8 July 2008

JUDGMENT DATE: 13 August 2008

JUDGMENT OF: Spigelman CJ at 1; Barr J at 191; Fullerton J at 192

DECISION: 1 Time to lodge an 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. 2 Leave to appeal refused in each case.

CATCHWORDS: CRIMINAL LAW – appeal and review – evidence – ruling on admissibility and effect of evidence – whether interlocutory judgment or order – right of appeal – Criminal Appeal Act 1912 NSW, s 5F - CRIMINAL LAW – accusatory system of criminal justice – prosecution duties – proof of elements of the offence – conclusive evidence certificate – connection to facts in issue – Telecommunications (Interception and Access) Act 1979 (Cth) s 18(2) - CONSTITUTIONAL LAW – conclusive evidence certificate – whether usurpation of separation of judicial powers – scope to challenge illegality of method of obtaining evidence –permissible modification of judicial process – Constitution Act ss 71, 77 - CONSTITUTIONAL LAW – conclusive evidence certificate – whether usurpation of right to trial by jury – essential characteristics of a jury trial – scope to challenge chain of evidence – permissible modification of judicial process – Constitution Act s 80 - EVIDENCE – facts excluded from proof – provisions as to conclusive evidence – Telecommunications (Interception and Access) Act 1979 (Cth) s 18(2)

Acts Interpretation Act 1901 (Cth) Constitution Act Crimes Act 1914 (Cth) Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Code Act 1995 (Cth) Customs Act 1901 (Cth) Evidence Act 1995 Judiciary Act 1903 (Cth) Telecommunications (Interception and Access) Act 1979 (Cth)