R v Qaumi & Ors (No 55)

[2016] NSWSC 1068

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 55) [2016] NSWSC 1068
Hearing dates:	1, 2 and 3 August 2016
Date of orders:	02 February 0003
Decision date:	08 August 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	1. Allow limited legal arguments to proceed in the absence of the accused. 2. Adjourn the trial until Monday 8 August 2016. 3. Direct the Sheriff and Corrective Services to construct a wall within the dock to separate three of the accused from the other two accused. 4. Direct Corrective Services Officers to put in place Perspex screen separating the dock from the courtroom when the jury is not present. 5. Direct Corrective Services Officers to remove the Perspex screen when the jury is present.
Catchwords:	CRIMINAL LAW – violence in courtroom – violence between accused in the dock – whether legal argument should be heard in absence of the accused – application by accused to be separated from co-accused – need to ensure physical safety of the accused – need to ensure psychological wellbeing of those in the courtroom – possible alternatives – audio visual E-dock – construction of barrier in existing dock – application by Crown to place Perspex screen in front of dock to separate accused from the courtroom – prejudicial impact – no indication that accused will attempt to leave the dock – escalation of misbehaviour of accused – balancing interests of accused with psychological safety of those in court
Cases Cited:	Jamal v R [2012] NSWCCA198 Regina (C'Wealth) v Baladjam & Ors (No 41) [2008] NSWSC 1462 R v Benbrika & Ors (Ruling No 12) 2007 VSC 524 R v Qaumi & Ors (No 8) (Variation of Non-publication Orders) [2016] NSWSC 184 R v Qaumi & Ors (No 23) [2016] NSWSC 429 R v Qaumi & Ors (No 24) [2016] NSWSC 505 R v AC (No 7) [2016] NSWSC 404 R v Qaumi & Ors (No 39) [2016] NSWSC 797 R v Qaumi & Ors (No 42) [2016] NSWSC 887 R v Qaumi & Ors (No 43) [2016] NSWSC 889 R v Qaumi & Ors (No 44) [2016] NSWSC 936 R v Qaumi & Ors (No 45) [2016] NSWSC 937 R v Qaumi & Ors (No 54) [2016] NSWSC 1067 Williams v R [2012] NSWCCA 286
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed Zarshoy Mohammed Kalal
Representation:	Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll(J Quami) R Driels (Zarshoy) G Clarke (Kalal)   Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction:	No publication until the conclusion of the trial.

Judgment

1. This judgment exposes the reasons for a number of decisions made in the trial between Monday, 1 August 2016 and Wednesday, 3 August 2016. It also determines an application made by the learned Crown Prosecutor to restore the fixed glass or Perspex screen in front of the dock. All of the decisions made to this point, as well as the extant application by the Crown, arose out of an incident that occurred at 2-20pm on Monday, 1 August 2016.

2. The incident involved two of the accused men (Mumtaz and Jamil Qaumi) violently setting upon one of the other accused men (Mohammed Kalal). The incident was captured on the CCTV and a disk containing the footage captured by a camera located above the dock area was tendered on the voir dire as exhibit VD PPP. Having reviewed the CCTV footage, it appears that that the accused Mumtaz Qaumi attempted to use a pen as a weapon and struck a blow towards the upper body, neck or head of the accused Mohammed Kalal. He was almost immediately restrained by officers of the Department of Corrective Services. Jamil Qaumi followed Mumtaz Qaumi across the dock and, after Mumtaz Qaumi was removed, threw two or three punches at or towards the head of Mohammed Kalal. The accused Farhad Qaumi appeared not to be involved in the incident. While one of the Corrective Services Officers appeared to restrain him, he took no action in the course of the brief but violent confrontation. The accused Mohammad Zarshoy took little part in the incident. He was, and has been throughout the trial, sitting on the other side of Mohammad Kalal. It appeared towards the end of the incident that he may have attempted to kick Jamil Qaumi while the latter was being restrained by some of the Corrective Service officers.

3. The incident occurred almost immediately upon the door being closed behind the jury and the Court Officer after the jury was permitted to disperse for the day and before a number of legal issues (objections to evidence) were to be ventilated. The timing of the incident, which took place in plain view of everybody in court including myself, appeared to be calculated to maximise the element of surprise while ensuring that the tribunal of fact was not present. While the incident was quelled quickly by the actions of Corrective Service officers (each of whom is to be commended for the promptness and courage of their actions) it was of an extremely violent and disturbing nature. A number of people in court, including myself, were shaken by it.

Background to the incident

4. The background to the incident is somewhat complicated and, to a degree, unknowable. Animosity in the dock commenced earlier this year in the course of pre-trial hearings. At that stage there were six accused including a woman to whom I will refer as Witness M. In the first two months of the pre-trial hearings, Witness M moved around the dock, sitting with different accused, although she mostly sat with the Qaumi brothers. In the early weeks of the pre-trial hearing, all accused appeared to be getting on well together. At some stage after the summer break there seemed to be a rift between the various accused. After that, it seemed that Witness M mainly, or only, associated with Messrs Kalal and Zarshoy.

5. On 12 February 2016 there was an incident in the dock which involved fighting between some of the accused. This occurred in my absence. After the accused were cleared from the dock, Corrective Services personnel located a razor blade: see R v Qaumi & Ors (No 8) (Variation of Non-publication Orders) [2016] NSWSC 184 at [15] – [21].

6. Subsequently, Witness M pleaded guilty and was sentenced for her involvement in various offences: R v AC (No 7) [2016] NSWSC 404. She became a Crown witness.

7. Since then, and particularly since the empanelment of the jury in early April, the five remaining accused have sat in the same positions across the front row of the dock. The chairs in the dock are in two blocks separated by a small gap of about 1 metre. The dock is on the left hand side of the court room (looking from the back of the court towards the bench). The front of the dock runs perpendicular, more or less at a right angle, to the bench. All accused sit in the front row of the dock with a number of Corrective Services officers sitting in the rows behind them. Mr Zarshoy occupies the seat closest to the bench with Mr Kalal next to him. There is then the small gap. The three Quami brothers sit in three chairs on the other side of that gap. Mumtaz Qaumi is closest to, and – effectively, subject to that gap - next to Mr Kalal. Jamil and Farhad Qaumi sit in the next two seats.

8. The accused Mohammad Kalal is mounting a defence of duress. This only became clear shortly before the empanelment of the jury: see R v Qaumi & Ors (No 23) [2016] NSWSC 429; R v Qaumi & Ors (No 24) [2016] NSWSC 505. This involves adducing evidence of violence and intimidation perpetrated by or on behalf of the Qaumi Brothers, their leadership role in the group and specific threats allegedly made to him by the Qaumi brothers. The threats were said to have been uttered by Jamil and Farhad Qaumi but also in the presence of Mumtaz Qaumi. This has led to a degree of rancour, including (to an appropriate and understandable degree) between counsel, and to a number of legal issues, applications and objections: see, for example, R v Qaumi & Ors (No 39) [2016] NSWSC 797, R v Qaumi & Ors (No 42) [2016] NSWSC 887, R v Qaumi & Ors (No 43) [2016] NSWSC 889, R v Qaumi & Ors (No 44) [2016] NSWSC 936 and R v Qaumi & Ors (No 45) [2016] NSWSC 937.

9. I have been made aware of a number of occasions when there has been harsh words exchanged between the accused. However, until Monday 1 August 2016, such actions had always taken place in my absence. When I entered the court after the short morning adjournment on 1 August 2016 there was shouting and abuse being exchanged by, seemingly, all of the accused. The shouting between Mumtaz Qaumi and Mohammad Kalal continued until I intervened. The transcript records me saying “everyone okay?” [1] However the transcript does not record that those words were directed specifically to the accused who were in the process of shouting at one another.

   1. Transcript (T) 5259.

10. It is in that context that the incident that described above at [2] – [3] took place.

The First Decision: To proceed with legal argument in the absence of the accused on Monday 1 August 2016

11. Immediately after the incident occurred the transcript records the following:

“IN THE ABSENCE OF THE JURY

HIS HONOUR: It is 20 past 2.

CORRECTIVE SERVICES OFFICER: We will take them downstairs your Honour.

HIS HONOUR: Yes. It is 20 past 2. There was an incident in the dock which we will discuss further in due course. At the moment the accused have left the courtroom and I propose to adjourn briefly. I will come back on at 2.30 probably in the absence of the accused.”

12. On returning to the bench I received submissions as to whether it was possible or appropriate to continue with the legal argument in the absence of the accused. Counsel for each of the accused consented to continue with the legal argument that afternoon. [2]

    2. T pp 5286 (Crown), 5286 (Zarshoy), 5287 (Jamil Qaumi), 5289 (Mumtaz Qaumi), 5290 (Farhad Qaumi) and 5292 (Kalal).

13. All counsel agreed that the situation had been building up over some time. Counsel expressed the legitimate concern that bringing the accused back into the courtroom at that time would almost certainly result in further violence. All of the accused counsel accepted that it was appropriate to proceed to hear legal argument in the absence of the accused.

14. Accordingly, with some misgivings based around decisions such as Jamal v R [2012] NSWCCA198 and Williams v R [2012] NSWCCA 286, I accepted that it was appropriate to continue to hear legal argument for a short period in the absence of the accused. My reasons for taking that course included my concern over the smooth running of the trial, attempting to minimise the disruption to the jury, the personal safety of the accused, the personal safety of Corrective Services officers and the emotional well-being of those working in the court room who had been exposed to a brief, but extreme, moment of violence. I was guided by the sensible approach taken by experienced and diligent legal practitioners. It was important that the accused remained in the court complex and were available to counsel should instructions be required. That was unlikely because the detail and nature of the objections had been canvassed in the presence of the accused. The legal argument only concerned some of the accused and was relatively brief. [3] No evidence was to be adduced and the jury was not present.

    3. The Court sat from around 2-45pm until 4-30pm to complete the legal argument and the argument is recorded at T 5293-5318.

The Second Decision: To enclose the dock by putting in place a Perspex screen on 2 August 2016.

15. The legal argument proceeded in the absence of the accused until around 4.30pm or so on 1 August 2016 and the matter was adjourned until 10.00am on 2 August 2016. Prior to arranging for the accused to be brought in court, I directed the officers of the Department of Corrective Services to put in place a Perspex screen which essentially creates an impenetrable, but transparent, wall between the dock and the courtroom. The courtroom in which the trial is taking place is purpose-built to allow for multiple accused in cases considered to involve security risks.

16. Before the pre-trial hearings commenced in November last year, I was requested by the officers of the Department of Corrective Services to put the Perspex screen in place. I declined to accede to their request.

17. After the incident on 12 February 2016, and the location of a razor blade in the dock, the question of putting the Perspex screen in place was revisited. Upon taking advice from one of the officers in charge of security in the dock, I determined to give the accused a further chance to conduct themselves in a civilised manner. I declined to order that the Perspex screen be put in place.

18. Apart from some shouting, all of which has taken place in my absence, the accused have conducted themselves well for almost the entirety of the trial. I have previously commented on this: see, for example, R v Qaumi & Ors (No 8) at [20].

19. However, having spoken to a number of people who (like me) were present in the courtroom at 2-20pm on 1 August 2016, I was aware that the violent confrontation that occurred at that time had caused distress to people working in the courtroom. Although there was no suggestion that the accused might attempt to leave the dock, the sound and sight of the violence was unnerving at best. I came to the view overnight that it was necessary, at least in the immediate term, to have the Perspex screen in place. I consulted counsel in chambers and put them on notice of my intention and invited submission as to whether the screen should remain in place for the remainder of the trial.

The third decision: To remove the screen when the jury, briefly entered, the courtroom on 2 August 2016

20. The third matter that I had to decide was whether to have the Perspex screen removed for the purpose of allowing the jury to enter the courtroom and to disperse. It quickly became apparent on Tuesday, 2 August that the parties agreed that it was inappropriate to proceed with the jury trial that day. I accepted the assessment of counsel for the accused who had had the opportunity to test the temperature, as it were. It seemed that tempers were still running hot. In any event, there was a further, and potentially lengthy, legal argument to be considered and it appeared that the parties may reach some consensus in relation to large parts of the particular controversy: see R v Qaumi & Ors (No 54) [2016] NSWSC 1067.

21. Accordingly, it was necessary to have the jury into the courtroom to explain to them that they would not be hearing further evidence that day and allow them to disperse. Each of the accused mounted an argument that the Perspex screen should be removed at least for that purpose. I accepted their submissions that it was unlikely that the accused would engage in any violent or other reprehensible conduct in the presence of the jury. Any such conduct was likely to work adversely to their interests. I also took advice from the Corrective Services officer in charge of security.

22. Accordingly I ordered or directed that the screen be removed when the jury returned to the court [4] but, after the jury had dispersed, I directed the screen to be put back in place until I heard further argument as to what should happen for the remainder of the trial. [5]

    4. T 5330.

    5. T 5332.

23. The parties had fruitful discussions in relation to the remaining legal arguments and neither I nor the accused were in court during those discussions. The Court re-assembled shortly after 2.00pm. Over the course of the luncheon adjournment, I consulted the Corrective Services Officer in charge of security. He had spoken to each of the accused. As a result of that consultation, I determined to have the Perspex screen removed while four remaining legal arguments were mounted. [6]

The fourth determination: To proceed briefly in the absence of the accused, to adjourn the trial and to build a barricade to separate the accused.

6. T 5335.

24. On Wednesday 4 August 2016 a series of applications were made. The result was that I decided that it was necessary to build a wall within the dock area to separate two of the accused men from the other three. I also reserved my decision on an application by the Crown to put the Perspex barrier in front of the dock back in place. The accused were not present during these arguments and the jury was briefly brought into court and allowed to disperse until Monday 8 August 2016.

25. Prior to Court, counsel asked to see me in chambers. By that stage (shortly before 10.00am) I understood that some or all of the accused had been brought into Court but then taken back to their cells. I was not told the reason for this but understand that animosity continued to be exhibited. I saw the Crown Prosecutor and counsel for each of the accused in chambers. I was requested to assemble the Court in the absence of the accused. Counsel for Messrs Zarshoy and Kalal indicated that their clients felt that they were not safe in the dock and intended to make an application that the trial not proceed until steps were taken to ensure their safety. All counsel agreed that the situation was such that the accused ought not to be brought into Court until the matter was resolved.

26. It is necessary to observe that the change in approach between Tuesday afternoon and Wednesday morning resulted from the fact that counsel had reviewed the in-court CCTV footage after the Court adjourned on Tuesday. It was only at that point that counsel realised that Mumtaz Qaumi appeared to have armed himself with a pen and attempted to use it as a “shiv”. This knowledge caused the parties, in particular, the Crown Prosecutor, Mr Zarshoy and Mr Kalal to reconsider their positions as to whether the trial could continue without further steps being taken to ensure the security of the participants.

27. Again, I decided that it was necessary to proceed in the absence of the accused in order to take submissions as to how to proceed. Counsel for Mr Zarshoy and counsel for Mr Kalal made application to adjourn the trial to enable arrangements to be made which would ensure their client’s safety. [7] Neither the Crown Prosecutor nor counsel for any of the three Qaumi brothers objected to this course.

    7. T 5359-5360

28. Since the incident occurred I have consulted with the Sheriff of New South Wales, the Sheriff Officer in Charge of Downing Centre Court complex, the Corrective Services officer in charge for the time being of security in the courtroom and other persons responsible for renovation of the courts and corrective services facilities.

29. To ensure the physical safety of the accused and the emotional well being of those in the courtroom, it was clearly necessary to make some arrangement whereby the accused were separated into two groups. The alternatives were to attempt to set up an audio visual link (AVL), a kind of E-dock, or to create a physical barrier between the accused within the existing dock. Having consulted those responsible for facilitating and implementing those alternatives and taken the submissions of counsel, I concluded that the construction of the wall was the most practical and time effective solution.

30. Using an AVL gave rise to a number of potential problems. Most importantly, it would be impossible on such short notice to guarantee that the facility was available all day, every day, for the remainder of the trial. The facility within the court complex is used in cases where child witnesses and other vulnerable persons give evidence from outside the courtroom. Those witnesses would, and ought properly to, take priority over the accused in the current trial. Use of the AVL facility was likely to give rise to significant delay in the trial. It was not clear that an alternative proposal of having an AVL to the gaol was feasible. Even if it were, the likelihood of technical glitches, or the unavailability of the facility from time to time, was likely to create delay and disruption to the proceedings. From whatever place the AVL was arranged, there would be practical difficulties in the legal practitioners consulting with their clients and there would be further difficulties if the accused elected to give evidence.

24. Further, there was some debate about which accused should be in the courtroom and which should appear by AVL. Farhad Qaumi objected to being excluded from the courtroom. Mumtaz and Jamil Qaumi objected to an AVL facility altogether and suggested that the appearance to the jury would be that some accused were being excluded for reasons that were not disclosed and that this may result in speculation that would give rise to unfairness. One possibility that was ventilated was that there be a rotation system in which Jamil and Mumtaz Qaumi and Messrs Zarshoy and Kalal appeared by AVL on alternating days. The egalitarian benefits of that option were outweighed by the practical difficulties to which it would give rise.

25. Those responsible for the construction of the barricade assured me that the solution was feasible and that it was expected that the construction could be undertaken prior to Court commencing on Monday 8 August 2016.

26. As the debate continued, all counsel agreed that the jury should be sent away until the matter was resolved. This meant that the jury would enter the courtroom in the absence of the accused for the first time. Consensus was reached as to what the jury should be told. The jury was allowed to disburse with the following directions:

“HIS HONOUR: Thank you once again for your patience, members of the jury. If you look across the courtroom, you will notice that the accused are not present here today. Other than in extreme circumstances that do not arise in this case, a criminal trial cannot proceed in the absence of the accused. Accordingly, once again, I am going to ask you to disperse.

For reasons that are not in any way relevant to the ultimate decision that you have to make, your deliberations or your verdicts, I have made certain decisions and given certain directions over the last couple of days and this morning about the configuration of the courtroom. You will see when you return the physical result of that.

However, carrying out the directions that I have made and will make is going to take a little time. The best estimate I am getting at the moment is a couple of days. I was being optimistic and hoping we could resume on Friday but realistically we won't be able to resume until Monday.

For that reason, I am going to allow you or ask you to disperse now with a view to returning and resuming the trial on Monday. I will, of course, recommend that you get paid for each and every day because obviously none of this is in any sense your fault.

I remind you of the directions I have given to you throughout the trial. Apart from the directions to which I have just referred, we have also in the last couple of days cleared out all of the remaining legal arguments touch wood and it is likely that the Crown case will proceed uninterrupted from when we resume, hopefully on Monday – I will [knock on wood] again – until Wednesday when the Crown case will conclude. There will, as I have anticipated, then probably be another gap where you will be asked to disperse for a few days but by that stage at least the Crown case will have come to its end.

So thank you once again for your attendance today and I will simply ask you to go with the court officer and look forward to seeing you on Monday. Thank you.” [8]

8. T 5364.

34. After the jury was sent away until Monday 8 August 2016, I accepted that the application by the accused Zarshoy and Kalal should be granted. Having considered all alternatives, I concluded that the least disruptive, fairest and most effective option was to direct that a barrier be constructed that separated Messrs Kalal and Zarshoy from the three Qaumi brothers. Accordingly, I made the following direction:

“I direct that the Sheriff of New South Wales, in conjunction with the Department of Corrective Services, erect a barricade or wall within the dock area in Court 3.2 of the Downing Centre so as to separate the dock into two separate spaces.”

Application to enclose dock with the Perspex barrier for the remainder of the trial

35. The Crown Prosecutor applied to have the Perspex barrier that separates the dock from the courtroom reinstated for the remainder of the trial. Each of the accused opposed that course. I heard arguments and reserved my decision.

36. The Crown submitted that the conduct of the accused on Monday represented a substantial escalation in hostility that had been simmering and building over the last weeks and months. It was put that the security of the court and the safety and psychological well-being in of the participants was a priority. While the Crown supported the erection of the barrier to separate the accused, it was put that this may mean that the accused might attempt to leave the dock. Further, it was suggested that one or more of the accused might conduct themselves in such a way as to cause the trial to miscarry. The Crown relied on parts of a statement of Detective Inspector Browne dated 20 April 2014 in which there is evidence that the accused (Mumtaz Qaumi) said that he “wanted to delay the proceedings as long as possible” and that the prosecution would “lose some of its ‘roll over’ witnesses if he can delay it long enough.”

37. The Crown relied on other evidence given in the trial and pre-trial hearing that supported the proposition that the accused, individually and collectively, were violent and dangerous men. There have been reports of threats to witnesses, investigators and other accused. In the courtroom, but in my absence, threats and abuse have been directed to police officers from the dock. I have observed some, albeit minimal, interaction between the accused and some of the informant witnesses. The violence that occurred on Monday in the presence of a judge and in the knowledge that the courtroom is monitored by CCTV cameras demonstrated that the trial has reached a point where the misconduct of the accused is escalating and unpredictable. The Crown also submitted that certain people in the courtroom would be trapped and have nowhere to flee if the accused left the dock. Although this thought was not articulated with more specificity, I take this to be a reference to the Court Officer, my Associate and the two Court Reporters. They sit immediately in front of me and the only exit from that location is via the well of the courtroom or via the bench, with access to those exits from a space around two metres from the front of the dock.

38. Counsel for each of the accused opposed the reinstatement of the Perspex screen. It was submitted that the screen would give the impression that the accused were dangerous men and that the jury may become fearful of the accused and think that they (the members of the jury) are not safe in the courtroom unless the accused are locked in a Perspex box. This would add a layer of prejudice that is inimical to the fairness of the trial. Senior Counsel for Mumtaz Qaumi made the point that the threats to delay the trial and the veiled threat to influence the witnesses (or worse) “have never come to fruition” and were “consistent with examples of grandiose comments that are more in the nature of hot air.”

39. There are at least two cases in Australia where similar applications arose. In each of those cases, the application was for a screen to be removed rather than for one to be introduced after an incident of violence. Each of the cases was a terrorism trial.

40. In Regina (C'Wealth) v Baladjam & Ors [No 41] [2008] NSWSC 1462 Whealy J said:

41. 74 My general view is that the presence of the fixed screen will make it more difficult for the accused to get a fair trial. I consider that the sense will inevitably be conveyed to a jury of 15 that these men do represent in fact a risk to the community, to people in the courtroom and perhaps to national security itself. The screen plainly separates them from the jury and everybody else in the courtroom. Images of other trials in far distant countries will inevitably present themselves to members of the jury when they first see the situation of the accused behind a fixed screen. The problem caused by the presence of the fixed screen will be exacerbated by the secondary problems arising from the difficulty of communication between client and lawyer. This will inevitably lead to an observation by the jury that, on a very regular basis, communication is significantly limited by the presence of the screen. Observations of this kind are likely to feed into the overall sense, principally caused by the presence of the screen, that these are dangerous people.

42. 78 In my opinion, the presence of the glass screen is but one more layer of prejudice (perhaps one that is more significant than any of the others), and it is an aspect of prejudice that can be avoided altogether by relatively simple and comparatively inexpensive means.

43. In R v Benbrika & Ors (Ruling No 12) 2007 VSC 524, Bongiorno J said (at [28]):

44. “As far as the screens themselves are concerned, I am satisfied that they have the effect contended for by Mr McMahon. They cut the accused off from the courtroom in such a way as to render the accuseds' presence hardly more real than if they appeared by a video link. The presence of the computer monitors also does not assist in this regard, although it is really the Perspex screens themselves, which create the effect. Although I am satisfied that the accused can generally hear the proceedings going on in the courtroom, their capacity to communicate with each other is severely restricted and they cannot communicate with their lawyers unless those lawyers actually enter the dock area. As far as the presence of the prison officers is concerned, the perception created by such a large number of them is that the accused are people who warrant being guarded in such a fashion to prevent their escape or to prevent other undesirable activity.”

45. In Baladjam, Whealey J referred to the judgment of Bongiorno J at paragraph [33]:

46. “Bongiorno J held that the situation was such as to materially diminish the accuseds' right to the presumption of innocence. His Honour considered that the situation could only be improved by the removal of the Perspex screen surrounding the dock and by a restriction of the number of uniformed prison officers in the courtroom at any one time.”

47. While I agree with the sentiments expressed by both Whealy J and Bongionro J, those cases involved applications at the commencement of a trial. There had been no incidents of actual violence. That is a significant feature that distinguishes those cases from the circumstances with which I am now confronted. In this case, there have been two significant incidents of violence within the dock. There have also been occasional incidents of verbal abuse between the accused as well as abuse shouted from the dock to people in the back of the Court.

48. It is true that the incidents have been intermittent and that the occasions of actual violence were separated by a period of over four months. It is also true that opinions offered in affidavits filed on behalf of the Police Commissioner that that the accused would intimidate informant witnesses did not come to pass. Contrary to the evidence received on those earlier applications, the accused have generally behaved well. However, their behaviour has been far from perfect and I accept the Crown’s submission that the most recent incident represents an escalation of violence that warrants serious consideration of the appropriate steps to protect the process and the participants in the courtroom.

49. To this point, there has been no suggestion that the accused would attempt to leave the dock or to escape. Given the security in and around the court complex any attempt to escape would appear to be destined to fail.

50. In terms of the physical protection of the Court Reporters, Court Officers and my Associate, I liaised with Corrective Services officers immediately after the incident. Since that time there has been an officer sitting between the dock and the entrance to the area where my Associate, the Court Reporters and Court Officer are located. That situation will prevail until the conclusion of the trial.

51. As to the suggestion that the accused may attempt to cause the trial to miscarry, a number of observations may be made. The first is that the accused’s behaviour to this point in the trial gives no indication of such an intention. The incident that gives rise to the current application occurred in the absence of the jury. The second observation is that any violence or misbehaviour emanating from the accused at this stage of the trial is unlikely to result in a discharge of the jury. Any application would be treated seriously and on its merit but a calculated attempt to cause the trial to miscarry is unlikely to succeed. The third observation is that it is difficult to perceive any rational motive in the accused to attempt to abort the trial at this stage. The trial is delicately poised and there have been successful attacks on the credibility of critical witnesses. Misbehaviour in front of the jury may diminish the prospect of the accused achieving an acquittal on some or all of the charges. While I accept that the accused’s behaviour is unpredictable and that the trial has reached a point where stress and tension may override rational thought, I do not consider that it is likely that the accused will deliberately try to abort the trial. In any event, even if one or more of the accused became determined to disrupt the proceedings, the Perspex screen will do little to prevent them from attempting to do so.

52. Like Whealy J and Bongiorno J, I am troubled by the appearance that the accused are so dangerous that they are required to be confined in the courtroom behind an impenetrable Perspex wall. I am concerned that this may give rise to a deal of prejudice to the jury. While direction could probably cure any such prejudice I have decided that, for the time being and dependent on the accused’s conduct, the Perspex barrier will be removed while the jury is presence.

53. However, such considerations do not arise when the jury is not present. I propose to direct the Corrective Services officers to enclose the dock with the Perspex screen whenever the jury is not in the courtroom. This will create no prejudice to the accused and will ensure that those in the courtroom are not again exposed to any repeat of the violence that disrupted the proceedings last Monday.

54. For those reasons I make the following orders:

1. Direct that the Perspex screen in front of the dock be closed when the jury is not present in the courtroom.

2. Direct that the Perspex screen in front of the dock be open when the jury is present.

**********

Endnotes

Decision last updated: 22 November 2016