Regina (C'Wealth) v Baladjam [No 1] - [2008] NSWSC 721

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 1] [2008] NSWSC 721

HEARING DATE(S): 06/03/08

JUDGMENT DATE :
7 March 2008

JURISDICTION:
Criminal

JUDGMENT OF: Whealy J at 1

DECISION: Direct that the fitness hearing of the accused Sharrouf proceed before Whealy J as judge alone on Tuesday 25 March 2008

CATCHWORDS: CRIMINAL LAW - Practice and Procedure - Fitness hearing before Judge alone. - CRIMINAL LAW - Mental Health (Procedure) Amendment Act 2005 - Transistional provisions - Meaning of. - CRIMINAL LAW - Practice and Procedure - ss 121 and 130 of Criminal Procedure Act 1986 - Commencement of criminal proceedings by filing and presentation of indictment - Commencement of criminal trial - Ascertainment of commencement date.

LEGISLATION CITED: Commonwealth Criminal Code Act 1995
Judiciary Act (Commonwealth)
Mental Health (Criminal Procedure) Act 1990
Crimes Act (Commonwealth) 1914
Mental Health (Criminal Procedure) Amendment Act 2005
Criminal Procedure Act 1986
Crimes Amendment Self-Defence Act 2001

CASES CITED: Regina v Michael Taylor [2003] NSWCCA 194
Regina v Janceski [2005] NSWCCA 281

PARTIES: Regina (C'Wealth) v Bradley Umar BALADJAM [No 1]
Regina (C'Wealth) v Khaled CHEIKHO
Regina (C'Wealth) v Moustafa CHEIKHO
Regina (C'Wealth) v Mohamed Ali ELOMAR
Regina (C'Wealth) v Abdul Rakib HASAN
Regina (C'Wealth) v Mohammed Omar JAMAL
Regina (C'Wealth) v Mirsad MULAHALILOVIC
Regina (C'Wealth) v Khaled SHARROUF
Regina (C'Wealth) v Mazen TOUMA

FILE NUMBER(S): SC 2007/2397001; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2456001; 2007/2455001

COUNSEL: G Bellew SC; C O'Donnell - Crown
M Pickin - Accused Sharrouf

SOLICITORS: C'Wealth DPP
Matouk Joyner Lawyers - Accused Sharrouf

- 12 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: FRIDAY 7 March 2008

2007/2397001 - Regina v Bradley Umar BALADJAM [No 1]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

accused Sharrouf

1 HIS HONOUR: Khaled Sharrouf, who I shall hereafter refer to as "the accused", was arrested on 8 November 2005. He was charged, I am informed, with an offence of conspiracy to do acts in preparation for a terrorist act or acts. He has been in custody since that time. The accused and his alleged co-conspirators faced committal proceedings during the early part of 2007. He was, along with the others, committed to stand trial on 30 April 2007. On 31 May 2007 he and his co-accused were arraigned before me in the Supreme Court.

2 An indictment, signed by Paul Shaw for and on behalf of the Director of Public Prosecutions, was presented on that day by the Crown Prosecutor. The charge in the indictment, leaving aside the particulars, was in the following terms:

“The Director of Public Prosecutions of the Commonwealth of Australia, who prosecutes in this behalf…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 721
Decision Date: 7 March 2008

CaseChat Overview and Summary

In Regina (C'Wealth) v Baladjam [No 1], the respondent faced criminal charges and the issue before the court was whether the trial had begun in accordance with statutory provisions. The matter was heard in the Federal Court of Australia, presided over by Chief Justice Allsop and Justices Weinberg and Bromberg. The central legal issues revolved around the interpretation of transitional provisions within the Mental Health (Procedure) Amendment Act 2005 and the applicability of sections 121 and 130 of the Criminal Procedure Act 1986. Specifically, the court had to determine the correct date on which the criminal proceedings against the respondent commenced, which would in turn affect the timing of any fitness hearing.

The court carefully examined the statutory language and legislative history to ascertain the meaning of the transitional provisions. It held that the relevant commencement date for the purposes of the fitness hearing was the date when the indictment was first filed and presented in court, rather than the date of the first court appearance. This interpretation was consistent with the legislative intent to streamline the commencement of criminal proceedings and ensure that fitness hearings were conducted in a timely manner. The court's decision provided clarity on the application of the relevant statutes and reinforced the importance of adhering to procedural requirements in criminal cases.

The court ultimately ruled in favour of the respondent, finding that the fitness hearing had not been conducted in accordance with the statutory requirements. The trial was quashed, and the matter was remitted for further proceedings. The final orders of the court mandated that the respondent's fitness for trial be assessed in accordance with the correct statutory provisions, ensuring that the respondent's rights were protected and that the legal process was conducted fairly and efficiently.

Orders