R v Khalid

[2015] NSWSC 1561

Supreme Court

New South Wales

Medium Neutral Citation:	R v Khalid [2015] NSWSC 1561
Hearing dates:	21 October 2015
Date of orders:	21 October 2015
Decision date:	21 October 2015
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. The trial date of 2 November 2015 is vacated. 2. The matter is listed before Johnson J, the arraignments judge on Friday, 6 November 2015 at 10am. 3. I order that the accused attend by way of audio-visual link before Johnson J on that day.
Catchwords:	CRIMINAL LAW – Practice and procedure – Application to vacate trial – Application based upon service by the Crown of voluminous material by way of disclosure – Where concession made by the Crown that the material was served at a stage which would not give the accused’s representatives a proper opportunity to consider its content and obtain instructions – Trial vacated
Category:	Procedural and other rulings
Parties:	Crown - Regina Sulayman Khalid - Accused
Representation:	Counsel: N Robinson QC and M England - Crown M Fozzard - Accused   Solicitors: Commonwealth Director of Public Prosecutions - Crown Zali Burrows Lawyers - Accused
File Number(s):	2014/376821
Publication restriction:	Nil

Judgment EX TEMPORE (REVISED)

1. These proceedings were listed before me today for the commencement of the hearing of a number of applications in advance of a trial which is listed to commence on 2 November 2015.

2. On 9 October 2015, the solicitor for the accused filed a notice of motion seeking, amongst other things, an order that the trial date be vacated. That application was supported by an affidavit of the accused's solicitor of 14 October 2015. That affidavit set out, in broad terms, two bases for the application. The first concerned the Crown's failure to provide, in a timely fashion, material it was obliged to disclose, which was an issue which had been raised in a previous mention of the matter before me some weeks before. The second arose from what was said to be adverse publicity, the nature of which I do not propose to canvass, but which was said to affect the right of the accused to a fair trial.

3. As events have transpired, it is the first basis of the application which has been the focus of attention today. The second basis has not been agitated. Notwithstanding that, it is appropriate that I make this observation: On Friday 16 October 2015, an article appeared in 'The Daily Telegraph' under the heading "A Child in the Grip of an Evil Cadre". The article canvassed the detail of a number of prosecutions currently before the Courts of persons charged with what might be generally described as terrorism offences. The article made reference to the present accused. It stated, amongst other things, that the accused was "being held in Supermax and will stand trial next year on charges he was in possession of documents 'designed to facilitate a terrorist attack'."

4. Two observations may be made about that part of the article. Firstly, the description of the charge which has been brought against the accused is inaccurate. The accused is charged with possessing documents, connected with the preparation for a terrorist act, knowing of that connection. There is nothing in the Indictment presented against the accused which alleges that he was in possession of documents “designed to facilitate a terrorist attack". The second observation to be made about that part of the article concerns the reference to the fact that "the accused will stand trial next year". Although, as a result of submissions that I have heard this morning, that may now be the case, it was certainly not the case at the time that the article was written. At that time, the trial was listed to commence not next year, but on 2 November this year.

5. This Court has a Media Officer whose responsibilities include answering queries from members of the media about trials that are listed to commence before the Court, or which are proceeding before the Court. Leaving aside the misdescription of the charge faced by the accused, the confirmation of a trial date can be obtained in a simple phone call. Having reviewed the transcripts of the occasions on which this matter has been before the Court prior to today, it can be safely said that there has never been any suggestion whatsoever, up until today, that the trial would take place in 2016. The origin of that assertion, which is made in quite specific terms in the article, remains a mystery. Although, as events have transpired, matters of pre-trial publicity and the like have not been issues upon which I have had to make an adjudication in terms of the continuation of the trial, it is perhaps appropriate for me to exhort members of the media, in the event that they are in any doubt at all about factual matters such as this, to make use of the resource which is available to them through the Court's media officer, and simply make a phone call to confirm the correctness of their understanding of a particular matter. The taking of such a simple step can go a long way to alleviating difficulties which might otherwise arise.

6. The primary basis of the application to vacate the trial which was argued before me this morning stemmed from the Crown's recent service of material to which its obligation of disclosure attached. In order to put that aspect of this application in its proper context, it is necessary for me to make some short observations about the history of the matter.

7. The accused was arrested in December of 2014. In May of this year, the Commonwealth Director of Public Prosecutions made application to the Chief Justice to allow an indictment to be presented against the accused in this Court, as opposed to it being presented against him in the District Court. I can only infer, in those circumstances, that the Commonwealth Director took the view that the case was of particular and sufficient importance to warrant it proceeding in this Court.

8. The Director's application was granted by the Chief Justice and arrangements were then made for the proceedings to be placed in the list before the arraignments judge. The Court moved quickly to allow that to happen. The matter first came before Johnson J on 3 July 2015. That was only a short time after the Commonwealth Director had made his application to the Chief Justice. When the matter came before Johnson J on that day, the Crown was not in a position to present an indictment, but indicated that it would be in a position to do so on the next occasion. In those circumstances, the proceedings were adjourned until 7 August 2015. On that day, the matter again came before Johnson J at which time an indictment was presented against the accused, to which he pleaded not guilty. Significantly, nothing was said to Johnson J on either of those occasions about any outstanding material which was required to be provided by the Crown to the accused by way of disclosure. The only conclusion I can reach, based on the material which is before me today, is that someone must have known that the service of such material remained outstanding at that time.

9. I accept the submission of senior counsel for the Crown who has appeared before me today that he did not know at that stage that service of the material was outstanding. Indeed, he did not appear before Johnson J and may not even have been briefed in the matter at that point. Similarly, junior counsel did not appear before Johnson J and I accept she was similarly unaware of the situation that existed. However, as I have said, somebody must have known that this was the position. In those circumstances, it is of some concern that Johnson J was not informed of it. That is particularly so in circumstances where, in setting the trial date, his Honour canvassed with the parties the need to have any pre-trial matters resolved before 2 November. It was certainly not indicated to his Honour that the service of any material remained outstanding.

10. When the matter first came before me some weeks ago I was informed, for the first time, that material which the Crown was obliged to disclosed had not been served. I was not informed at that time of the extent of that material. I infer that senior counsel was not in a position to determine that at the time. In any event, I made orders on that day requiring the material to be provided.

11. The Crown has accepted that what was referred to in written submissions as "final two tranches" of the material was served on two separate occasions, the first of which was six and-a-half weeks before the scheduled commencement of the trial, and the second of which was just under four weeks before that time.

12. The significance of the service of that material in such close proximity to the trial date is best gauged by reference to the affidavit of the accused's solicitor of 8 September 2015. In that affidavit, the accused's solicitor deposed to the fact that on 18 September she was served with material which included:

1. a box of approximately 2,000 loose pages;

2. 21 CDRs; and

3. a USB Stick.

13. She observed (and it is not, as I understand it, disputed by the Crown) that one of the Discs served contained no less than 6,942 separate files. Those files included details of phone calls and text messages. They also included other media files. Other discs contained what were described as “thousands of materials including documents, briefs and media files”. As I say, the Crown did not cavil with those descriptions.

14. A further bundle of material was served by the Crown on 6 October last. In that this material, although perhaps not as voluminous as that served in the first instance, was of a similar description.

15. The accused's solicitor deposed to the fact that it would be an almost impossible task for any legal practitioner to view that material, digest it and obtain instructions from the accused about it prior to the trial. She also made the observation that amongst the material were recorded conversations in the Arabic language which would obviously need to be translated.

16. The Crown, in written submissions before me today, has conceded that a "significant amount of material" was served on those acting for the accused on the two occasions to which I have referred. The submissions noted, and as I have indicated, I accept, that the Crown was not aware when the trial date was set that that the provision of such material was outstanding.

17. In those circumstances the Crown has not opposed the trial date being vacated. In taking that position the Crown has acknowledged that those acting for the accused require further time to properly consider the material which has been served, and obtain instructions. Implicit in that concession is an acknowledgement of the fact that if the accused’s representatives are not given that opportunity, the accused will be denied a fair trial.

18. The situation which has arisen as a consequence of the late service of this material is, to say the least, lamentable. The accused has now been in custody for a period of approximately ten months. Other than saying that the trial will not take place until sometime in 2016, I am not in a position to be any more specific. It may well be, given the workload of the Court, that the trial cannot be listed until sometime approaching the middle of next year. If that were to come to pass, it would mean that the accused, as a person who enjoys a presumption of innocence, will have been detained in custody for a period approaching eighteen months since the time of his arrest. The unacceptability of that circumstance needs no further comment.

19. The fact that the situation has, as the Crown has conceded, been brought about in large measure by its failure to serve material in a timely fashion is, as I have said, lamentable. I repeat that whilst I accept that the Crown and his junior may not have been aware of the fact that this material was outstanding when the matter before Johnson J months ago, somebody must have been aware of it. Quite apart from consequences to which I have already referred, the vacation of this trial necessarily means that other accused person(s) have been denied the opportunity to have an earlier trial date.

20. I have already observed that in bringing an application to the Chief Justice to have the trial proceed in this Court, the Commonwealth Director of Public Prosecutions must have taken the view that the importance of the trial justified such a step being taken. It is to be hoped that from this point onwards the importance that the Director obviously attaches to the matter will be reflected in the way in which it is prepared for trial.

21. For all of those reasons, I make the following orders.

1. The trial date of 2 November 2015 is vacated.

2. The matter is listed before Johnson J, the arraignments judge on Friday, 6 November 2015 at 10am.

3. I order that the accused attend by way of audio-visual link before Johnson J on that day.

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Decision last updated: 21 October 2015