Supreme Court
New South Wales
Medium Neutral Citation: R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 3) [2016] NSWSC 1864 Hearing dates: 6 October 2016 Date of orders: 06 October 2016 Decision date: 06 October 2016 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: Suppression order issued.
Catchwords: CRIMINAL LAW – suppression of name or anything that would identify a witness – witness provided statement to Police under inducement and promise for protection of identity and security of him and his family – Court satisfied witnesses name and identity should be supressed. Legislation Cited: The Court Suppression and Non-Publication Orders Act 2010 Category: Procedural and other rulings Parties: Regina (Crown)
Azam Charbaji (Co-accused)
Haysem Charbaji (Co-accused)
Lexy May Jamieson (Co-accused)Representation: Counsel:
Solicitors:
M Cunneen SC (Crown)
K Chapple SC (Co-accused, Azam Charbaji)
M Austin (Co-accused, Haysem Charbaji)
M Shaw (Co-accused, Jamieson)
Office of the Director of Public Prosecutions (Crown)
Alexander Lawyers (Co-accused, Azam Charbaji)
Oxford Lawyers (Co-accused, Haysem Charbaji)
Blair Lawyers (Co-accused, Jamieson)
File Number(s): 2015/5665; 2015/5907; 2015/26215 Publication restriction: NON PUBLICATION ORDER IN RELATION TO WITNESS CL: THE NAME OF THE WITNESS TO BE CALLED BY THE CROWN, THE ADDRESS OF THE WITNESS TO BE CALLED BY THE CROWN, OR ANY FAMILY OF THE WITNESS OR ANY MATTER THAT WOULD IDENTIFY THE NAME, ADDRESS OR PHONE NUMBER OF THE WITNESS OR HIS FAMILY, WILL NOT BE PUBLISHED AND THE WITNESS SHALL BE REFERRED TO AS CL.
EX TEMPORE Judgment (UNREVISED)
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HIS HONOUR: An application is made to the Court under The Court Suppression and Non-Publication Orders Act2010 for an order suppressing or prohibiting the publication of the name and anything that would identify the witness to be called next in these proceedings.
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The Court has power under s 7 of the aforesaid Act to make the order. The order is one that is made only in exceptional circumstances, given the importance of the public being informed and having available to it evidence adduced in the proceedings. Nevertheless, in these matters now before the Court, by way of application within the trial, it is not suggested that the evidence of the witness would be suppressed, only the name, address and anything that would identify the witness. As a consequence, the public’s right to hear what is being given in evidence is a matter that will be protected, even if orders in the form before the Court were made.
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The evidence before the Court is, essentially, that the witness provided a statement to police and assisted in their investigations under an inducement that would protect the identity of the witness and ensure his and his family’s security.
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As a consequence, I am satisfied that it is necessary, in order to prevent prejudice to the proper administration of justice and to protect the safety of any person and otherwise necessary in the public interest, that on the limited basis sought, namely, in relation to the name, address or anything that would identify the witness to be called, the Court should make a suppression order under s 7 of the aforesaid Act on the grounds contained in s 8 of the aforesaid Act.
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The Court makes an order that the name of the witness to be called by the Crown, the address of the witness to be called by the Crown, or any family of the witness or any matter that would identify the name, address or phone number of the witness, will not be published.
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- AGLC
- R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 3) [2016] NSWSC 1864
- Case
- [2016] NSWSC 1864
- Decision Date
CaseChat Overview and Summary
The central legal issue the court had to address was whether the assurances provided to the witness by the police were sufficient to warrant the suppression of his identity. This involved examining the circumstances under which the witness provided the statement and the nature of the inducements and promises made. The court needed to weigh the public interest in the suppression of the witness's identity against the rights of the defendants to a fair trial, including their right to confront witnesses.
The court found that the witness had provided his statement under a clear inducement and promise of protection from the police, which included assurances about the security of his family. Given the potential risks to the witness and his family, the court concluded that the suppression of the witness's name and identity was necessary to ensure his safety. The court was satisfied that the assurances given to the witness were credible and that suppressing his identity was justified to protect him from potential harm. Therefore, the court ruled in favour of the suppression of the witness's identity.
The final orders of the court were that the witness's name and any identifying information should be suppressed. This decision was made to protect the witness and his family from any potential harm that might arise from the disclosure of his identity. The court's ruling was based on the balance between the witness's right to protection and the defendants' right to a fair trial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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